Complainant

Respondent

Anonymised Parties

A Chief Architect

A Payment Solutions Company

Representatives

Alastair Purdy & Co. Solicitors

Ronan Daly Jermyn Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00021094-001

10/08/2018

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

CA-00021095-001

10/08/2018

The Complainant was employed by the Respondent from 15 July, 2002 until 24 May, 2018 and was working in the role of Chief Architect when his employment was terminated. The Complainant claims that a genuine redundancy situation did not exist within the company at the material time of his dismissal and that he was unfairly dismissed within the meaning of Section 6 of the Unfair Dismissals Acts. The Respondent disputes the claim of unfair dismissal and claims that the Complainant’s employment was terminated by reason of redundancy.

The Complainant commenced employment with the Respondent company in July, 2002 and excelled in his performance which resulted in him being promoted to the position of Head of Architecture in October, 2013. The term “Head of Architecture” was commonly interchangeable within the company where the Complainant would find himself being referred to as either the Head of Architecture or Chief Architect.

The Complainant in his role reported to the Chief Technical Officer from October, 2013 and in October, 2016 was awarded a large pay increase and furnished with an up-dated contract of employment which increased his period of notice to the Respondent from one month to three. Shortly after this, the Chief Technical Officer to whom the Complainant reported, left the Respondent company in May, 2017 and his replacement to that role being, Mr. A, took up his position in August, 2017.

In December, 2017 the Respondent’s parent company acquired another company i.e. Company A. This new company operated in the same market as the Respondent and at this juncture the Respondent had approx. 1,000 employees and operated in 25 countries.

On 20 March, 2018 the Complainant had his yearly appraisal carried out by Mr. A. During the appraisal, Mr. A stated that he did not understand what the Complainant did and posed the question directly to him as to whether he ever considered “working outside [the Respondent company]”. Mr. A preceded to state that due to the acquisition by Company A, the Complainant’s role as Head of Architecture “doesn’t make sense” in the new organisation. Following this bombshell, Mr. A agreed to a follow on call with the Complainant to discuss matters. However, this call never took place.

On 27 March, 2018, the Complainant received an e-mail from Mr. B (Group Commercial Controller, Finance) of the Respondent company for which he was obviously not the intended recipient. The e-mail stated: “in terms of the Chief Architect, in discussion with [Mr. A] the existing resources will be managed out over a three-month period”. The e-mail went on to state “for the [Country X] resource, that team is being maintained so request is to keep that individual”. As the Complainant brought his receipt of this e-mail to the Respondent’s attention Mr. A attempted to try and placate him and apologise that he had received the e-mail. However, there was no further communication from Mr. A to the Complainant from that point onwards.

On 10 April, 2018 the Complainant received official correspondence from the Respondent informing him that his role was now at risk of redundancy and offering him a consultation session with the HR Department. While that consultation did indeed take place, by 24 April, 2018, the Complainant received confirmation that his position had been made redundant and his employment was to be terminated with his contractual three months’ notice. The Complainant was given the right to appeal which he duly elected to take. While the Complainant duly appealed the decision, his appeal was not upheld, and confirmation of his redundancy was confirmed by letter dated 24 May, 2018. Curiously, this letter refers to an appeal meeting with the Complainant however there was no face to face meeting between the appeal officer, Mr. D, and the Complainant and in fact the appeal was conducted via a phone call while Mr. D was on a train journey.

The Complainant disputes the Respondent’s contention that the company did not require a Chief Architect and submits that it was evident from an extract of the IT resourcing plan which was included in an internal e-mail dated 27 March, 2018 that there was a requirement for a permanent post of Chief Architect. The Complainant submits that this document predates the letters relating to redundancy and was approx. one week post the e-mail that was inadvertently sent to the Complainant seeking to “manage” him out of the business. Of further note, is the fact that the Respondent in July, 2018 advertised for a new role of “Technical Design Authority”. The duties which were to attach to this title were in fact all of the duties and roles of a Chief Architect. On that role being filled, it was taken up and filled within the UK Office.  It is the Complainant’s contention that it was the Respondent’s wish to have this role in the UK office but did not want the Complainant to be offered the opportunity. In fact, it is the Complainant’s understanding that when questioned on the title of this new role, the new hire would declare that the title had to remain for “HR reasons”.

The Complainant submits that in the Respondent’s letter to him on 10 April, 2018 in which they put him at risk of redundancy, it is stated that they were considering making the position redundant on foot of Section 7(2)(b) and (c) of the Redundancy Payments Act 1967. This has, from the above information, actually proven to be untrue on the basis that the role did not cease or diminish and in fact the Respondent hired additional staff to deal with the duties which had previously been in the remit of the Complainant. Further, the Complainant confirms that while he was attending high-level off-site sessions, discussions had been taking place on how to integrate the two IT systems of the two merged companies, being the Respondent and Company A, which only added to the architectural work in place. Additionally, as outlined above, the Respondent employed a new person to be based in the UK office to carry out this function. It is submitted that these facts clearly contradict the elements of a valid redundancy that the Respondent is attempting to rely upon. Further, during Mr. A’s appraisal of the Complainant in March, 2018 wherein he confirmed that the new organisation would be split in two, this again was not true as the Company announced that all company brands would be brought together under one brand unifying the company. Again, this is at complete odds with information that had been furnished to the Complainant prior to his dismissal.

The Complainant submits that the dismissal letter that the Respondent relies upon also states that the Company A team already had a team with an architecture function. Again, this is factually incorrect, and it is submitted that the organisation structure for Company A at the time of acquisition shows no dedicated architect role which in essence should have increased the necessity for the Complainant as opposed to the alleged reduction.

During the course of consultations between the Complainant and the Respondent, the Respondent indicated to the Complainant to check the external website for a list of other IT vacancies, of which there were none applicable to him. The Complainant submits that it is noteworthy that following his redundancy, a role of Solution Architect was in fact planned under the title “Payment Solution Designer” and on the internal system for new roles on 30 April, 2018 and published on 30 May, 2018, the week his employment was terminated. The Respondent made no contact with the Complainant to inform him of this position and should his redundancy have been, as argued, impersonal, then it is difficult to understand why the Respondent would not have contacted the Complainant who had excellent long service with the company.

The Complainant submits that following the merger between the Respondent and Company A, it is noteworthy that out of more than 150 IT staff, the Complainant was the only role to be made redundant in the office where he was located. In fact, it is the Complainant’s understanding that the Respondent offered retention business to staff in that location following the merger on foot of the work required to complete same. It is also noteworthy that prior to the Complainant’s appeal decision, the Respondent had reassigned his entire team to work for other managers giving the appearance that the appeal outcome was somewhat of a foregone conclusion.

In summary, the Complainant submits it is clear that following the departure of the Chief Technical Officer to whom he reported for a considerable time and his replacement to that role in August, 2017 that a decision had been made to specifically target the Complainant with a view to removing him from the Respondent’s business. Taking this into account, it is not possible for the Respondent to now claim that the Complainant’s position is redundant on foot of the fact that there is clear evidence that such a role was indeed required by the business and that a person had been employed in the UK in 2018 to the UK office to fill this role. It was submitted that contrary to the Respondent’s contention of a valid redundancy, the Complainant was instead unfairly dismissed from the post that he had held with the Respondent for some 16 years.

The Respondent relied upon the following cases in support of his position, namely: St. Ledger -v- Frontline Distributors Ireland Limited [1995] ELR 160, Moloney -v- Deacon and Sons Limited [1996] ELR 2030, Edwards -v- Aerials and Electronics (Ireland) Limited UD236/1985 and Barry -v- Precision Software Limited [2007] ELR 190.  

The Respondent is a financial services company specialising in payments solutions for banks, merchants and tourists. In recent years, the Respondent has been the subject of a series of acquisitions, restructures and further sale processes, the most recent of which its acquisition by Company A in late December, 2017. Thus, as the Respondent began 2018 it was operating a range of very separate legacy divisions across its IT operations and they were very much under review.

Within the Respondent’s IT operations at the time, the Complainant was the lead of a small group within his role as Head of Systems Architecture (Chief Architect) reporting to Mr. A (Chief Technical Officer (CTO)). The Complainant’s role involved managing a small team that carried out some architecture, but the majority of time was taken up in handling project work as required. The Respondent launched “Project A” in Q1 of 2018 to seek to review and best structure its various legacy divisions. It was a sizeable task to review the existing mesh of independent legacy structures, drawn from two previously separate companies, with differing and often overlapping roles and to then propose a coherent, effective restructured IT function from across a very disparate array of geographical locations within Ireland and overseas. This was a review that stretched far beyond the role of just the Complainant and his team. The CTO, Mr. A, had been involved in the ongoing project and as part of that, as yet incomplete work, he examined the role and function of the Complainant’s team.

The CTO identified that whilst there was indeed some architecture activity, the team also handled significant projects and also some processing roles which arose as a specific legacy task. The nature of the architecture work was therefore limited to some advisory capacity. Going forward a number of dynamics would change the situation. The Respondent had already undertaken a process whereby they had separated out their two distinct divisions into Payments and Tax-Free Technology. That involved combining the old separate legacy Payments team into one combined Payments technology team. They were earmarked as being the best placed to absorb the small amount of remaining legacy platform work. Also, the Respondent was set to commence work on a new Tax-Free system which would require a much tighter coupling of architecture and development over the following two years.

Specifically, in relation to the Complainant’s team, that meant their continued role was under review and the Complainant’s role as head of that team was also being considered. The Respondent submits it is important to note that there were very many ongoing changes being considered across its roles and functions. This was just one small piece in a much wider review impacting across the Respondent’s global IT operations. It was a complex task and the full programme of change was planned to take over two years to review and adopt. During the lengthy period of review, the CTO had very much signalled to his staff, including the Complainant, that restructure was being planned.

In the interim period, by March, 2018, the Respondent’s Executive Management Team (EMT) had to maintain a plan on resourcing levels throughout this lengthy period of change. A confidential e-mail issued from Mr. B (Group Commercial Controller, Finance) dated 22 March, 2018 updating the EMT on the current parameters regarding recruiting and resources and which stated that “In terms of the Chief Architect, in discussion with [Mr. A] the existing resources will be managed out over a three month period”. This e-mail was mistakenly copied to the Complainant and this error was escalated to the Group HR Director, Ms. D, who immediately issued an apology to the Complainant.

Thus, it was decided that, in the given circumstances, it was only fair and proper that the consultation on the Complainant’s role would be brought forward and determined at an earlier stage, rather than wait for the fuller consideration of Project A, which had some months yet before it was ready to be considered. The Respondent submits that the original, confidential e-mail was a budgetary holding position. It clearly does record the fact that the Complainant’s post was being discussed between Finance and the CTO and it also records clearly the fact that this is a work in progress, with discussions yet to be made.

The Respondent duly undertook a consultation process with the Complainant on the proposed redundancy and it is submitted that this was a bona fide process undertaken in good faith, albeit under the regrettable backdrop of the Complainant having been upset by the circulation of the earlier, confidential email from the Finance Team.

The Respondent commenced the consultation process by way of a notification letter dated 10 April, 2018 which also addressed the e-mail issue in a clear and upfront manner with a further unreserved apology issued in relation to same. The underlying basis for the proposal to make the post of Chief Architect redundant was outlined in full and the Complainant was invited to furnish his input through a series of subsequent consultation meetings.

The Complainant’s input and views were fully considered. However, the Complainant chose to adopt a certain approach to this consultation process, effectively objecting in principle and deciding he would, as the notes record “keep all his feedback in relation to the proposal for another time”. The Complainant objected to the matter being addressed by Mr. C, Group Head of IT Infrastructure, rather than his more senior report, Mr. A (CTO). However, it was the case that Mr. A was very seriously ill at the time and not in a position to address the matter. The Respondent submits that fair procedures require that the Complainant be given an opportunity to be consulted with in relation to the proposed redundancy and that opportunity was notified to him in clear terms and was then granted access to various meetings which were arranged during the process. Despite that, the Complainant, in effect, provided little input but the opportunity was granted to him.

The process culminated in an outcome letter dated 24 April, 2018 being furnished at a delayed, reconvened meeting on 25 April, 2018. It was determined that the Head of Systems Architecture – IT Role (Chief Architect) was made redundant. The Complainant was granted both his full statutory entitlements in terms of notice and, leave and redundancy and he was also offered an ex-gratia payment subject to his entering into a standard waiver and discharge agreement, but he ultimately declined to take up that offer.

The Complainant appealed by way of an e-mail dated 1 May, 2018, an appeal meeting with the Group HR Director, Ms. D, was subsequently undertaken on 24 May, 2018 and following her consideration of the matter a letter of appeal outcome issued on 24 May, 2018. The outcome letter records the fact that, as with his earlier meetings, the Complainant approached the opportunity presented by the appeal meeting with limited input. Indeed, for reasons not understood by the Respondent and not expanded upon by the Complainant, he chose to hold back information and e-mail documentation he claimed evidenced the Respondent’s plan to hire in another Chief Architect role elsewhere within the organisation. The Complainant was asked to expand on this and to furnish whatever e-mail documentation he was referring to but declined. Ms. D was not aware of any plans to hire a comparable role and as Group HR Director would likely have been aware of any such proposals were they in train.

Ultimately, the redundancy decision was upheld and the same offer was made to the Complainant regarding an ex-gratia payment but that was not taken up and instead the Complainant pursued the matter as an unfair dismissal.

The issue for decision in the present case is whether or not the Complainant was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Acts. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

The fact of dismissal was not in dispute between the parties, and therefore, the burden of proof rests with the Respondent to demonstrate that the termination of employment came within a lawful reason. The Respondent claims that the Complainant was dismissed from his employment by reason of redundancy whereas the Complainant has claimed that the termination of his employment was not attributable to a genuine redundancy situation and that he was unfairly dismissed from his employment.  

In the circumstances, in order to satisfy the burden of proof it is therefore a matter for the Respondent to establish (1) that a genuine redundancy situation arose and (2) that it acted reasonably and fairly towards the Complainant in addressing that situation.

Section 7(2) of the Redundancy Payments Acts provides:

“(2) For the purposes of subsection (1), 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 the 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 employees is not sufficiently qualified or trained, or

(e) not relevant.”

In considering the first point above, I note that the Complainant was employed in the position of Head of Systems Architecture/Chief Architect at the material time that his employment was terminated. It was common case that there was only one such position within the Respondent company at that juncture. The Respondent provided compelling evidence that the company had been the subject of a series of acquisitions and mergers and the most recent of which was its acquisition by Company A in December, 2017. I accept the Respondent’s evidence that, as a result, it was necessary to implement a restructuring process within the company which had the effect that the Respondent no longer had a requirement for the Complainant’s role with some of his duties no longer being undertaken and the remainder of the tasks associated to the role being redistributed across other sectors within the organisation. The Respondent also adduced evidence that this restructuring process resulted in a total of fifty positions being made redundant throughout various sectors of the company during the period prior to the date of the Complainant’s redundancy and that a number of other senior management were also made redundant.

Having regard to the evidence adduced, I accept the Respondent’s evidence that the company no longer had a requirement for the Complainant’s position of Head of Systems Architecture/Chief Architect and that this role became redundant as a result of this restructuring process. In the circumstances, I find that a genuine redundancy situation did, in fact, exist at the material time of the Complainant’s dismissal.

In terms of considering point number 2) above and deciding whether or not the Complainant was unfairly selected for redundancy I am obliged to take cognisance of the following provisions of the legislation. The contractual entitlement to a defined procedure in terms of the selection of candidates for redundancy is provided for in Section 6(3) of the Unfair Dismissals Act 1977 which states that:

“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure.”

In order to invoke the provisions of Section 6(3) of the Act, it must firstly be established that the circumstances constituting the redundancy applied equally to one or more other employees and those other employees must have been employed in employment similar to that of the Complainant and with the same employer.

In the present case, it is clear that there was only one position of Head of Systems Architecture/Chief Architect within the Respondent’s company, which was held by the Complainant, at the material time of his dismissal. I am therefore satisfied that the circumstances constituting the redundancy did not apply equally to other employees of the Respondent as there weren’t any other similar roles being made redundant within the company at that juncture. Accordingly, I find that the provisions of Section 6(3) are not applicable to the circumstances of the present case.

However, in considering the fairness or otherwise of the Complainant’s selection for redundancy, I am also obliged to take cognisance of the provisions of Section 6(7) of the Unfair Dismissals Act 1977 (as substituted by s.5(b)(a) and (b) of the Unfair Dismissals (Amendment) Act 1993), which provides that:

“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 adjudication officer or the Labour 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 mission) of the employer in relation to the dismissal”.

This provision provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of deciding on the fairness or otherwise of a dismissal and it places an obligation on an employer to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy.

In this regard, I note that the Employment Appeals Tribunal held in the case of Mulcahy -v-  Kelly [1993] E.L.R. 35 held that “it is well established that there is an obligation on an employer to look for an alternative to redundancy”. It also held that:

“Having heard the evidence presented the Tribunal is satisfied that a redundancy situation existed in September 1990 when the decision was made to terminate the claimant's employment. It is our opinion that the claimant's dismissal resulted wholly or mainly from reasons of redundancy.

Notwithstanding that the claimant's selection for redundancy was not in contravention of a procedure or an established custom and practice of the employment relating to redundancy, there is an obligation on an employer to look at all employees as possible candidates for redundancy.”

The EAT also held in the case of Boucher & Others -v- Irish Productivity Centre[1] that:

“Where section 6(3)(b) of the 1977 Act did not apply on the basis that there is no history of compulsory redundancy nor any union/management agreement or contractual provisions to identify a method of selection for redundancy, an employer is obliged to act fairly in relation to the criteria to be applied in making such a selection and to apply such criteria fairly to each individual in order to achieve a fair assessment and decision. The employer's selection for redundancy may be reviewed under section 6(1) in the absence of section 6(3)(b) being applicable.

The onus of proof is on the employer to establish that he acted fairly in the selection of an employee for redundancy. Where assessments are used as a means of selection the onus is on the employer to establish that reasonable criteria are applied to all employees and that the selection of an individual employee is fairly made in the context of those criteria.

The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business and at that time would have behaved. This standard of fairness is applied to both the procedural and substantive aspect of the employer's decision.

Where selection for redundancy involves consideration of employees' contribution and versatility to the respondent those in the group likely to be dismissed should be made aware that such assessment was being made and they should be given an opportunity to give their views which should be considered. To be considered fair the assessment should have the characteristics of an enquiry.”

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd -v- Brigid (Beatrice) Burns UDD1854 that: “The Court accepts that the Respondent was entitled to restructure its business and reduce its workforce if necessary. While the Court accepts that the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.”

Having regard to the totality of the evidence adduced in the present case, I find that the Respondent did not act fairly or reasonably and did not apply fair procedures in terms of the manner in which the Complainant’s redundancy was effected. In coming to this conclusion, I have made the following findings:

·         I am satisfied that the Respondent did follow a consultation process with the Complainant to inform him that his role within the Company was being considered for redundancy. However, I note that the consultation process was initiated on 10 April, 2018 after a confidential e-mail from Senior Management had inadvertently been sent to the Complainant on 22 March, 2018 which clearly indicated that plans were in train to make his position redundant i.e. “In terms of the Chief Architect, in discussion with [Mr. A] the existing resources will be managed out over a 3-month period”. It is clear that the discussions which preceded the issuing of this e-mail involved the Chief Technical Officer, Mr. A, who was a member of the Executive Management Team and the person who ultimately took the decision in relation to the redundancy of the Complainant’s role. Whilst I accept that the Respondent indicated to the Complainant in the consultation notification letter that the purpose of the process was to allow him to furnish his views on the proposed redundancy. Having regard to the foregoing, I cannot accept the Respondent’s contention that the plan to “manage out” the Complainant’s position was essentially a budgetary holding position and that no decision had been made at that juncture to make his position redundant. In the circumstances, I find that it is reasonable to conclude that the decision to make the Complainant’s position redundant was pre-determined by senior management prior to the commencement of the consultation process.     

·         I note that the Complainant had approx. 16 years’ service with the Respondent. The Respondent is a large multi-national organisation with a diverse range of business units and it is clear from the evidence adduced that there was a requirement to create new positions as a result of the restructuring process. I have not been presented with any cogent evidence from which I could reasonably conclude that the Respondent carried out a thorough exercise to consider alternative options/suggestions other than redundancy during the course of the consultation process. In this regard, I note that it was stated by the Respondent in the redundancy consultation notification letter that was issued to the Complainant on 10 April, 2018 that: “It is now proposed that this role will be ceased [i.e. the Complainant’s role], with some duties no longer being undertaken and the remainder transferring across as follows: The recruitment of a full-time specialist systems architect reporting to the Head of Tax Free Development …. ”. The Complainant contended that following his dismissal the Respondent created a new role which was filled within its UK Office that was substantially the same as his role of Chief Architect. The Respondent denies that there was a comparable Chief Architect role in play at the time of the Complainant’s dismissal. However, I note that the Respondent did not adduce any evidence to contradict the contention that a new position was created in the UK or to suggest that the Complainant would not have been suitably qualified to at the very least have merited consideration for appointment to this position as an alternative to redundancy. I accept that had the Respondent carried out a thorough exercise to consider alternative options/suggestions other than redundancy it may not have identified any alternative positions suitable to the Complainant. However, it seems clear that the Respondent failed to engage in any meaningful exercise to explore or consider whether a suitable alternative role existed for him within the organisation. On that basis, I find that the approach adopted by the Respondent was somewhat arbitrary and lacking in procedural fairness.

·         I also find that the consultation process would appear to have been carried out with undue haste and I note that the decision to make the Complainant redundant was communicated to him some 14 days after the consultation process had commenced. I accept that the Respondent arranged two meeting during the consultation process to discuss the proposed redundancy and I note the Respondent’s contention that the Complainant chose to adopt a certain approach to the consultation process, effectively objecting in principle and deciding that he would “keep all his feedback in relation to the proposal for another time”. I am satisfied that the Complainant did not fully engage in a pro-active manner with the Respondent during the consultation process and I take the view that it was remiss of him to do so. However, I am satisfied that any failure by the Complainant to fully engage in the consultation did not extinguish the Respondent’s obligation to adhere to fair procedures and the requirement to give due consideration to the possibility of alternative employment options that may have been available, which I have already found that it failed to do.

·         It was not in dispute that the Complainant was afforded the right to appeal his dismissal and that the dismissal was upheld on appeal. The Complainant contends that the appeal process was also fundamentally flawed for a number of reasons including the fact that he was not afforded an appeal meeting but rather that the appeal took place by way of a telephone call with the appeal officer (Ms. D, Group HR Director) while she was on a train journey. I did not have the opportunity to hear evidence from Ms. D as she did not attend the oral hearing, and therefore, I have not been presented with any direct evidence by the Respondent to contradict the Complainant’s version of events in relation to the conduct of the appeal. I also note that the Respondent did not adduce in evidence any notes or minutes in relation to the appeal meeting. Having regard to the evidence adduced, I am satisfied that that the manner in which the appeal hearing was conducted did not conform to the required standards of procedural fairness. 

Having regard to the foregoing, I find that the Respondent did not act reasonably and failed to apply fair procedures in terms of the manner in which the Complainant’s redundancy was effected. Accordingly, I find that the Complainant’s dismissal was unfair within the meaning of Section 6(7) of the Unfair Dismissals Acts. 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

In accordance with the provisions of Section 7(1) of the Act I am obliged, having listened to the views of the parties as to preferred redress in the event of a finding of unfair dismissal, to determine which of the three forms of redress open to it is most appropriate having regard to the circumstances of this case. On this point, I note that the Complainant’s preferred form of redress was reinstatement whereas the Respondent indicated a preference for compensation. In the circumstances, I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. Instead, I take the view that compensation is the appropriate redress in this case.

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to Superannuation”.

Having regard to the above provisions of Section 7 of the Act, I am satisfied that financial loss can consist of a) actual loss i.e. loss of net income between the date of the dismissal and the hearing or decision, b) estimated future loss of income and c) pension losses. Such loss can be explicitly claimed or inferred from the evidence heard. The compensation for total loss under these headings is of course subject to the cap of 104 weeks remuneration.

I have also taken into account, as I am required to do by Section 7(2)(c) of the Act, the extent to which the Complainant has taken measures to mitigate his. Having considered the evidence adduced on this point, I am satisfied that the Complainant has made reasonable efforts to obtain alternative employment following his dismissal, but his attempts in this regard have been unsuccessful up to the date of hearing. 

The Complainant’s rate of pay was €7,700.00 gross per month at the time of his dismissal, and I deem that an award of €92,400.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal. Given that I have found the Complainant’s employment was terminated by way of an unfair dismissal, he does not have an entitlement to a statutory redundancy payment. Therefore, I order that any statutory redundancy payment which may have been paid to the Complainant by the Respondent on the termination of his employment should be deducted from the above award.

Unfair Dismissals Act 1977 to 2015  – Redundancy - Consultation process - Suitable alternative positions – Dismissal procedurally unfair - Complaint well founded – Compensation awarded