INTRODUCTION The Claimant’s employment was terminated by reason of redundancy with effect from 2nd July 2018. The redundancy situation arose due to the ongoing restructure of the Respondent. The Respondent followed fair procedures at all stages including seeking the Claimant’s input and proposals to avoid the redundancy situation before any final decision was made. It also identified one available alternative role for the Claimant’s redeployment if the redundancy occurred and asked the Claimant to review all vacancies and any potential roles that he wishes to consider. The Claimant was given paid time off and offered support in order to put forward such proposals, but he did not do so in respect of either avoiding the redundancy or redeployment options. The Respondent submits that the Adjudicator should dismiss this complaint. FACTS The Respondent is an Irish company that holds events across the world: It gathers the founders and CEOs of technology companies, fast-growing start-ups, policymakers and heads of state to discuss the future and possibilities in industry. The Complainant commenced employment with the Respondent on 2nd September 2014 as Content Producer, on a fixed-term contract and was made a permanent employee on 2nd September 2015. In his role of Content Producer the Claimant produced the editorial content (i.e. topics and suggested speakers) for individual stages at Respondent events. The Claimant was promoted to Lead Producer on 1st June 2016 with a pay increase to €84,460 and to Speaker Director on 7th December 2017 on a salary of €88,000. On 1st June 2018 the Claimant received a further salary increase to €90,000 per annum. As Speaker Director, the Claimant influenced the topics of discussion, the desired speakers and the compilation of panels across a number of the Respondent’s events and stages. He was the central point of contact for the various teams working on such events and worked with other Speakers Team members to ensure a consistently high calibre of speakers were acquired for all event stages. Between 2014 and 2018, the Respondent’s four events had up-scaled significantly, from 1200 speakers in 2014 to over 3000 speakers in 2018. This scalability saw the process of acquiring high-profile speakers, the logistics around each event and planning editorial content for each stage becoming significantly more complex. The Respondent’s overall attendance at their events grew from 50,000 to over 100,000 attendees. This significant growth led to the Respondent commencing a period of strategic changes in 2017 to meet the increased demands. These changes included the doubling of its headcount, opening of international offices, a review of the company’s manager to employee ratio, a review of the demands on individual managers’ time and mentorship of their employees, and the introduction of the quantitative approach to measuring success in each of the Respondent’s divisions. The wider business also saw a significant evolution as the Respondent built stronger links between the high-profile speakers for its stages and the growth of its revenue from strategic partnerships as part of its sponsorship solution. The editorial demand for each of the Respondent’s stages continues to be high as the expectations of its global audiences, the world’s media and the speakers it books, grow. These positive and demanding changes required strategic development of the overall business especially those teams that produce the main event’s editorial content for 24 stages, acquire high-calibre speakers, physically build event space, engineering the technology that would be used for over 100,000 people and develop sales strategies to penetrate global markets to increase revenue. These strategic changes were taking place across each of these teams. The Claimant was involved in the introduction and implementation of this strategic change and three of the Event Leads were reporting to the Claimant. The fourth Event Lead (who had been a Senior Producer) reported to the Head of Strategic Communications, who was the Claimant’s line manager at that time. However, the Speaker Operations Team, who organised the specific logistics around each of the speakers secured by the Speaker Team for each of the events, remained with the Live Event Production Team and the Respondent identified that it needed to address the continuing disconnect between the Speaker Team and the Speaker Operations Team. Therefore, the Respondent made it a priority to hire a Head of Speaker Operations to assist with this disconnect in Q1 2018. On 27th March 2018, the position of Head of Speaker Operations was advertised both internally and externally. The Claimant showed no interest in this role and did not apply for it. As no-one within the Respondent applied for the role, an external candidate, Ms F, was interviewed for the role. During the post-interview debrief it was concluded by the interview panel that Ms F represented an opportunity for the business to address the disconnect between the Speaker Team and the Speaker Operations Team by having one person implementing an important strategic, leadership and structural change into both teams. This opportunity arose due to Ms F having over twenty years professional experience including a significant period of time spent in a CEO post. This decision was made in line with the Respondent’s goal of adding more support to these teams. It facilitated the amalgamation of these teams under a single leader for a more efficient performance from both teams, including an improved speaker experience, increased acquisition of speakers, support the refocused approach to the Respondent’s editorial strategy for each of its stages at each event and to see closer working relationships with internal teams such as the Partnership team. Ms F commenced with the Respondent on 21st May 2018 and the Speaker Operations Team and the wider Speaker Team started to work together on this same date, both reporting into Ms F. This was to facilitate the required closer communications between the two teams. Ms F commenced a process of reorganising the Speaker Team so each of the four Event Leads were being supported by the most appropriate content producers. Three of these Event Leads continued to report into the Claimant and one reported directly to Ms F. However, as the teams were now specialising and focusing on a specific area since December, the necessity for the Event Leads to receive guidance and influence in respect of editorial content i.e. the topics, appropriate speakers and panels, had greatly reduced as they were now becoming subject matter experts. Therefore, soon after the amalgamation of the two teams of Speaker Operations and wider Speaker Producer, it became evident that the Claimant’s role as Speaker Director was no longer required and could be easily subsumed into other existing roles. On 19th June 2018, at 9am, Mr M, the Respondents’ Chief of Staff & Head of HR, met with the Claimant and discussed the changes as set out above and that his role has been identified as being at risk of becoming redundant. The Claimant was asked to consider the matter further and to revert to Mr M, with any alternative proposals to avoid the redundancy situation, by 12 noon on 21st June 2018. The option of redeployment was also discussed and the Claimant was given details of an alternative position within the Respondent that fit the Claimant’s experience and was offered at a higher salary than normal for that role but it was at a lower salary than what the Claimant was on. However, the Claimant was asked to identify any other role that he thought might be suitable. Mr M gave the Claimant a letter setting out what was discussed at this meeting. In order to give the Claimant the opportunity to fully focus on any proposals and/or alternative roles, he was given paid leave and not required to attend work. Mr M made it very clear to the Claimant that this was not notice of redundancy and that the Respondent hoped that an alternative could be found for the Claimant. Mr M acknowledged that this news would be stressful and reminded the Claimant of details of the confidential support service provided under the Employee Assistance Programme. The Claimant sent an email to Mr M on 19th June at 2.43pm in which he asked what the “the redundancy package would look like” if he were to choose that option. Mr M replied at 3.38pm setting out the details of the redundancy package plus his standard notice period, unused annual leave and statutory redundancy payment. Mr M made it clear in his email that sharing these details as requested by the Claimant is not notice of redundancy. The Claimant asked Mr M to phone him on 20th June 2018 to discuss the matter further, as Mr M was in Cannes with work at the time. During this phone-call, the Claimant asked for clarification on the reason for being put at risk of redundancy. Mr M again explained how the situation arose and stated that the desire of the business was to see the Claimant redeployed or come up with any alternative proposals. The next day, the Claimant sent an email to Mr M at 8.32am on 21st June 2018 acknowledging that Mr M had advised him during the telephone call the day before to focus on putting forward any suggestions to avoid the redundancy situation and that a further meeting or discussions may then be required to ensure that the Respondent fully understands the Claimant’s proposals. The Claimant’s email went on to state that as he did not have an opportunity to have a representative at the meeting on 19th June he was now furnishing Mr M with “a detailed submission”. The Claimant then set out a chronology of events from December 2017 as he saw it. He stated that he was open to discussing options around redeployment, job sharing and working part time. He rejected the alternative role that was identified as he felt that it was not a suitable alternative given the different level and salary. The Claimant criticised the period of time of four days that he was given to put forward alternatives as being too short, even though he was given time off work during this period. He considered this short period as being unreasonable. The Claimant alleged that the time to consider redeployment options was also too short. He submitted that the Head of Speakers role was substantially the same as his position of Speaker Director. The Claimant stated that he had made enquiries about the role to his then line manager and was advised not to consider it. The Claimant alleged that this all showed that his redundancy was pre-determined. He then asked about the change of the advertised role of Head of Speaker Operations to Head of Speakers and stated that had he known of this change he would have sought the opportunity to be considered for the role. He also enquired about the new role of Head of Editorial which he alleged his former line manager, had moved into. Mr M responded to the Claimant’s email on the same date at 6.36pm Irish Time, acknowledging the Claimant’s shock and that the news was still sinking in. He stated that he was delighted that the Claimant had the same goal as the Respondent to seek to avoid the redundancy and that he was open to redeployment if such an opportunity could be identified. Mr M confirmed that it was never his intention to put the Claimant under any undue pressure or stress with the deadline for his proposals and extended the deadline to 12 noon on 27th June 2018. Mr M reassured the Claimant, as he had done at the meeting and letter of 19th June and the telephone call on 20th June 2018, that no decisions had been made about a redundancy. He reiterated the basis as to how the question of redundancy arose and that it had nothing to do with the Claimant’s performance, for which he had received a bonus in the previous December. Mr M stated that he was there to support the Claimant and answer any questions that he had but explained that he could not reveal any information about other employees. He asked the Claimant to focus on putting forward proposals including redeployment options. Mr M responded in his email to the questions raised by the Claimant’s email in relation to the change in the role of Head of Speaker Operations. He explained that it was based on Ms F’s vast and extensive experience at such a senior level that it facilitated the opportunity to move forward with one of the strategic goals of the Respondent in the Speaker Operations team and the wider Speaker team as set out above. He went on to explain that the hiring of Ms F was not the single reason that the Claimant’s position was at risk of redundancy. Mr M reminded the Claimant that restructuring was currently taking place in other teams such as the Partnership & Exhibitors team and the Live Events & Engineering team and the broader basis for these changes. Mr M then set out how it was proposed that his role would be carried out in the future which led to it being put at risk of redundancy. He clarified that the Claimant’s former line manager’s title had not changed to “Head of Editorial” as alleged and remained as “Head of Strategic Communications”. Mr M confirmed that the Respondent never advertised nor had an opening for “Head of Editorial” and therefore the Claimant had not missed out on applying for such role as alleged. Mr M repeated that he hoped that the redundancy situation could be avoided. Mr M did state, in error, that the Claimant would remain on “garden leave” until the process was completed. However, it was clear from all the correspondence and communication between Mr M and the Claimant, including that email that Mr M was not using the term “garden leave” in line with its proper legal meaning as he specified that no decision had been made as yet and the Claimant had not been given notice of redundancy. Mr M did not know at the time that “garden leave” only related to notice period. Mr M finished the email by offering the Claimant his support in completing his proposals. On 27th June 2018 the Claimant met with Mr M to discuss proposed alternatives to redundancy. Ms D attended the meeting as a note-taker. Mr M informed the Claimant at the start of the meeting that no decision would be made at the meeting and that the Claimant’s proposals will be assessed after the meeting. He reiterated that follow up meeting(s) may be needed for clarification of the Claimant’s proposals. Mr M asked the Claimant for his thoughts. The Claimant stated that he believed that his role of Speaker Director should not be made redundant for several reasons: The Claimant’s ability to fulfil the position of Speaker Director as a role in itself along with the team requirements i.e. the business needs someone with the experience of programming stages, managing the stages, as well as the viewpoint that the Speaker Director and the bearing the role has on the whole team as well as the company. Within the next 3-year plan, there could be new events. Therefore, there is a great need for leadership within the team, as significant hiring is ongoing. In relation to redeployment, the Claimant stated that he was not comfortable in accepting a position that is below his current salary and strongly wished to have the same level of responsibility as a leader in the business. He stated that he felt disheartened that a producer role was suggested and that the position reported into an event lead, a role he had previously done. The Claimant felt that the Respondent should come up with further alternative roles rather than the Claimant review the vacancies available. Mr M advised the Claimant that they had reviewed the vacant positions and were not able to identify any suitable roles other that the one that the Claimant had now rejected. Mr M informed the Claimant that they were hiring 3 C-level positions at the leadership level (i.e. CFO, CCO & CTO levels) but that these roles required specific experience, which the Claimant did not have. Mr M explained to the Claimant that the fundamental shift in the team structures is that the business is getting more event-centric and regional and that this was impacting on other teams. Mr M asked if the Claimant wanted further time to review the alternative roles available. The Claimant said that he did not need any further time. Mr M confirmed with the Claimant that the two actions requested by the Claimant were: For Mr M to reassess the need for making the position of Speaker Director redundant, and Consider potential redeployment to an alternative role to the position that the Claimant had rejected. Mr M confirmed that the Claimant would remain on paid “garden leave”, repeating the error he made in his email of 21st June 2018. However, Mr M said that he will advise the Claimant of when the outcome meeting will take place, clearly indicating that no decision had been made as to whether or not the Claimant’s employment was to be terminated by reason of redundancy or not. The Claimant was furnished with a copy of the minutes of the meeting by email on 27th June 2018 and was again offered any support. On 2nd July 2018 Mr M met with the Claimant and informed him that he had done a reassessment as to the need for the Speaker Director role in light of what the claimant stated at the meeting on 27th June but unfortunately Mr M concluded that the reasons for the role being put at risk of redundancy remained unchanged. Mr M also concluded that there was no other appropriate role within the business for the Claimant’s redeployment that meets his request to retain his current remuneration and leadership status. Therefore, he informed the Claimant that he had no other option but to terminate his employment by reason of redundancy. Mr M informed the Claimant that it was decided to pay him in lieu of his eight weeks’ notice entitlement in order to give him the maximum time to find alternative employment. He was offered €7,500 ex gratia payment on the signing of a Waiver & Release and advised to get legal advice prior to signing the document. A letter and waiver and release document was handed to the Claimant at the meeting. By letter dated 17th July 2018 the Respondent received a letter from Madden & Co. Solicitors on behalf of the Claimant. The letter confirmed that the Claimant would not be signing the Waiver & Release but enclosed the RP50 Form signed acknowledging the payment of the statutory redundancy entitlement. The letter then alleged that the Claimant was unfairly dismissed on the basis that: · Mr M had used the term “garden leave” for the Claimant’s paid leave during the consultation process and alleged that the use of the term by itself is evident that the decision to terminate the Claimant’s employment had already been made. · Allegedly there was no genuine redundancy in place at the time and alleged that the Claimant’s role was being carried out by Ms F with the assistance of Mr H, the Claimant’s former line manager. The letter queried whether the CEO had any issue with the Claimant which resulted in the termination of his employment. · Allegedly no procedures were followed by the company in selecting the Claimant’s role for redundancy and alleged that the Claimant was “shut out of the office, marginalised and isolated from his colleagues, all of which had a damaging effect on his reputation”. The letter went on to demand a copy of information and documentation, some of which was under the Data Protection Acts. Mr M responded to Madden & Co. Solicitors by letter dated 19th July 2018, Mr M reiterated how sorry the Respondent was to see the Claimant go and that there was no alternative position within the Respondent that was acceptable to him. Mr M stated that: “Needless to say, the Company would have preferred for xxxxxxx to remain in the Company as there was never any issue with his performance or with his relationship with the CEO.” Mr M re-iterated in detail why the Claimant’s role was put at risk of redundancy and how the failure of the Claimant to put forward any alternative proposal and the Respondent to identify how his role could continue within the altered structure led to his role becoming redundant. Mr M also set out how the Claimant was furnished with a link to all available roles and offered further time to consider redeployment options but did not take up this offer and rejected the role that was offered to him. Mr M explained that he had mistakenly used the term “garden leave” as he did not realise at the time that this term should only be used during a notice period. However, he pointed out that his mistaken understanding of the term was very clear by the content of the conversations and correspondence and the Claimant could not have considered himself to be on notice of termination of his employment during this period. Mr M rejected the allegations that the Claimant was marginalised or isolated and stated that the Claimant was never refused access to his desk. Mr M explained that the Claimant was given time off to focus on putting together proposals to avoid the redundancy situation without the added stress of work. The Claimant was informed that he did not have to attend work after the meeting of 27th June as Mr M thought that the Claimant would not have been in the right mind-set to focus on work until a decision had been reached. Mr M explained that “[t]his was only being considerate of xxxxxxxx’s welfare”. THE LAW Section 6 of the Unfair Dismissals Act 1977 provides: “6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Section 6(4) goes on to state “6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: … (c) the redundancy of the employee,” The definition of redundancy is found in Section 7(2) of the Redundancy Payments Act 1967-2003 as amended: "[A]n employee who is 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 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 has 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 has 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 has 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." 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 before dismissal. “Section 7. Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so— (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.” Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia, that: “… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.” The onus is placed on the Respondent to justify the dismissal and where the Respondent seeks to rely on the redundancy defence, case law has determined that the following criteria must be met: A genuine redundancy situation must have arisen Fair selection criteria applied Consult and explore alternatives to the redundancy The Claimant has an obligation under the Unfair Dismissals Acts to mitigate his financial loss. SUBMISSIONS & RESPONSE TO ALLEGATIONS IN CLAIM FORM It is submitted that a genuine redundancy situation arose in respect of the Claimant’s role as set out in detail above. This was mainly due to the requirement to restructure the Respondent’s teams to meet the increased demand on quality and quantity of speakers and the logistical requirements in respect of each such speaker at their ever-growing events. The strategic and structural changes are ongoing within the Respondent. At no time to date has any role become available at the same level as the Claimant’s role. All vacancies were either at a lower level or a significantly higher level. The Claimant was a good performer and the Respondent had hoped that a solution would have been found in order to keep the Claimant as an employee. In this regard, the Respondent offered the Claimant an alternative role which was at a lower level but the Respondent offered the Claimant the role at a significantly higher salary then the role would normally attract and also higher than the salary of Event Leaders but it was a lower salary then what the Claimant had been on. The Claimant did not have the same level or depth of experience as Ms F and would not have been in a position to head up the amalgamated Speaker Team. Mr F’s role is far more complex and senior than the role that the Claimant carried out. The Claimant’s role no longer exists. Any continued functions of the Claimant have been subsumed into other roles, some of which the Claimant was not qualified to carry out and others which are at a lower level to that of the Claimant’s role. The Claimant was not put on “garden leave” as alleged by the Claimant. In fact, it is clear from the first letter dated 19th June 2018 that the Claimant was given “paid personal leave” which was confirmed would not to be taken out of his annual leave entitlement. The purpose of this leave, as explained to the Claimant, was to enable him to focus on coming up with alternative proposals and/or redeployment options without any other distractions or enquiries from team members as to what he was doing. The paid leave was given to the Claimant with his best interest in mind and for no other reason. There was no reputational damage as the team were informed that the Claimant was on leave. Mr M used the term “garden leave” in error in subsequent correspondence and meetings but in the same correspondence or meeting he made it very clear to the Claimant that no decision had been made and requested that the Claimant focus on looking at proposals or redeployment options. It is very clear from the correspondence and the minutes that the Claimant was not given notice of redundancy until 2nd July 2018 and that Mr M was not using the term “garden leave” in its correct legal context. Mr M admitted to and explained his error in his understanding of the term “garden leave” to the Claimant’s solicitor by letter dated 19th July 2018. There was no selection criteria applied to the Claimant as he was the only one in his role. The Respondent followed fair procedures and sought the Claimant’s input and proposals to avoid the redundancy situation. The Claimant was given paid time off to focus on compiling such proposals and not only extended this period but offered to further extend the period on 27th June 2018, however the Claimant turned down this offer. The Respondent offered the Claimant support throughout the process and Mr M made himself available at all times to the Claimant if he had any questions and also offered the Claimant assistance in putting together his proposals. However, the Claimant did not put any proposals forward for consideration other than to reconsider the necessity of his role but without any proposal as to how it could continue within the changing strategy and team structure. The Claimant was offered the only suitable alternative position available at an increased salary but turned it down as it was a more junior role. The Claimant was given the link to review all vacant roles and revert with any other role that he thought were suitable, but he did not identify any such roles. As stated above, no suitable roles at the Claimant’s level has become available and this is evident by the fact that the Claimant has not applied for any vacant roles with the Respondent to date. It is submitted that the Claimant’s rejection of the alternative role at a higher salary of €60,000 is contrary to the Claimant’s duty to mitigate his loss as he could have taken up the role while looking for an alternative role. The Claimant was paid in lieu of his notice entitlement to enable him to focus on finding alternative employment. He was also paid his statutory redundancy entitlement and outstanding annual leave. He was paid a total gross payment of €24,071.10, less appropriate tax deductions from his notice and annual leave entitlements. CONCLUSION It is submitted that the Claimant was not unfairly dismissed. The Claimant’s employment was terminated by reason of redundancy and the Respondent followed fair and reasonable procedures in relation to same. The Claimant made little or no effort to avoid the redundancy or explore redeployment options. It is submitted that the Claimant has not met his obligation to mitigate his loss by refusing to take up the alternative position that was offered to him. It is submitted that this claim should be dismissed. | 
