Complainant

Respondent

Anonymised Parties

A Course Superintendent

A Golf Club

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-00023133-001

09/11/2018

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

CA-00023134-001

09/11/2018

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

CA-00023135-001

09/11/2018

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

CA-00023136-001

09/11/2018

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

CA-00023137-001

09/11/2018

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

CA-00023138-001

09/11/2018

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

CA-00023159-001

12/11/2018

The Complainant was employed by the Respondent from the 1st June 1994 until 9th July 2018 having received notice of redundancy on the 14th May 2018. He worked as a golf course superintendent since 2001 and he was paid €63,976 gross per annum. The Complainant is claiming that he was unfairly selected for redundancy contrary to the terms of the Unfair Dismissals Act, 1977.

The Complainant was employed as a course superintendent in the Respondent’s golf club. His main duties included the management and maintenance of the greens at the golf club and the supervision of 3 greenkeepers. He said that since 2011 there was ongoing rationalisation in the club and staff were made redundant and the budget was reduced. He said he was responsible for substantial savings in the expenditure budget between 2009 to 2015 by taking cost-cutting measures. He was threatened with being made redundant in 2011 after making a grievance complaint. The complaint was investigated and upheld. In 2014 another attempt was made to make him redundant but eventually management decided against it. In 2017 a new board of management was elected. In December 2017 the union on behalf of its members entered negotiations with the club about wage restoration as the existing 5-year staff agreement had expired. A special sub-committee was created to represent management and it was proposed by the subcommittee that a 5% wage rise for the 3 greenkeepers was to be subsidised by a further wage reduction to the Complainant's pay. This proposal was rejected, and it was agreed that the talks would continue in January 2018.

On the 7th of May 2018, the Complainant received a letter instructing him to attend a meeting on the 14th of May in the club to discuss the course contract. The Complainant sought clarification about the purpose of the meeting and he received an email informing him that the meeting was called to discuss a severance package because his position was being made redundant. The Complainant contacted his Union and the Union represented him at the meeting on the 14th of May. At the start of the meeting the secretary of the golf club handed out a letter stating that at the board of management meeting held on the 3rd of April 2018, the committee decided to make the course superintendent redundant. The decision to make the Complainant redundant was confirmed at the meeting and he was told that the reason for the redundancy was financial. Following discussions, it was agreed that the redundancy would be suspended pending further information being supplied by management.

However, despite the agreement the Respondent continued with the redundancy and informed all the club members by text message about the decision to make the Complainant redundant. There were ongoing discussions between May and July with the Complainant's Union, but the Respondent did not reverse the decision to make the Complainant redundant. Despite the club claiming financial difficulties and planning going forward to work with three greenkeeping staff, another employee was hired and commenced his employment on the 6th of July 2018. Furthermore, on around the 18th of June 2018 while the Complainant was a notice another position was created of marketing manager. This job was filled by one of the club members without the job being advertised.

Union Submission

I was referred to section 6(3) of the Unfair Dismissals Act and asked to apply the case law emanating from this section. It was submitted that there are three basic principles derived from the case law; an employer may not use redundancy to hide other grounds of dismissal; in carrying out redundancy process the employer needs to act reasonably; and that a dismissal carried out in breach of agreed procedures is unfair. 

In Sheehan and O'Brien vs Vintners Federation of Ireland 2009 [ELR 155] the claimants had been employed as regional representative for around 12 years before being made redundant. They contended that there had been no discussion about how their jobs could be saved or the possibility of alternative positions within the organisation. The case was successful, and each were awarded €43,000 in compensation. In Crosby vs Fuss Door Systems Ltd 2009 [ELR] 38, the dismissals were found to be unfair, inter alia, because the company did not consult the Complainants’ trade union sufficiently. In Callaghan vs Olok Limited UD219/2009, the EAT said that "best practice" was to carry out "a genuine consultation process" prior to reaching a decision as to redundancy.  In Mulligan v J2 Global (Ireland) Ltd UD1369/2008, the EAT found the Complainant was not adequately consulted. In JVC Europe Ltd v Ponisi [2012] ELR 70 it was highlighted that it might be "prudent and a mark of genuine redundancy that alternatives to letting an employee go should be examined” and that "a fair selection procedure may indicate an honest approach to redundancy by an employer". In the decision it was emphasize that where "selection procedures for redundancy are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed."

In Mulcahy vs Kelly [1993] ELR 35 it was noted that "it is well established that there is an obligation on an employer to look for an alternative to redundancy," The Union argued that the application of this duty may involve an employer identifying an alternative to redundancy through reorganization of working time; or through filling a vacancy existing somewhere in the organisation; or in the case of an employee with a long history, dismissing an employee with less service.

Finally, where redundancy is unavoidable, the employer is obliged to establish reasonable and objective criteria for selection and must apply those criteria fairly. Boucher v Irish Productivity Centre UD882/1992 is one of the leading Irish decisions on the requirement of consultation.  In this case 5 employees were made redundant on the grounds that they were not earning sufficient revenue for the employer. They were not afforded an opportunity to show their capability to earn revenue for the organisation, or to demonstrate their ability in comparison with that of those employees who were retained. The EAT, in holding the dismissal unfair said: "it is not for the Tribunal to consider whether input would have made any difference, but its denial is a denial of the right of the natural and constitutional right to defend oneself which is not at the gift of the employer or of this Tribunal but is vested in every citizen no less in any enquiry affecting their employment, than when the enquiry might affect their liberty.” 

Given the above, the union submitted that the components of a reasonable redundancy process would include (a) warning that redundancies are being considered; (b) attempts to avoid redundancy; (c) preparing objective criteria for the redundancy selection; (d) space for an employee to suggest other alternatives to the redundancy none of those happened.

On the 14th of the May 2018 the Complainant was informed that the decision to make him redundant had already been made. There was no record of any attempt to avoid redundancy and no objective criteria for the redundancy selection. The Respondent for some undisclosed reason decided to make the Complainant redundant. There was no consultation to discuss possible alternatives means to avoid it. They did not follow any procedures in relation to redundancy, even though such commitment was given in the past.

The union submitted that the Complainant believes that there was no economic justification to make his position redundant. The Respondent was not in a bad financial condition. Furthermore, many of his duties were connected to maintenance of the club and after his dismissal, other employees had to take on many aspects of his job. In addition, shortly after his dismissal, another employee was hired to do some of his duties. An additional employee was hired as a marketing manager while the Complainant was still on notice. This job was not advertised, and the Complainant was not made aware of this new role. The Complainant was the only person made redundant. The Respondent did not disclose to the Complainant cost saving plans, restructuring program or any documentation related to the alleged financial difficulties the club had been experiencing. The Complainant believes that there were other options available other than redundancy.

The Respondent’s Treasurer said he took over the role of treasurer in March 2016. The club had lost a lot of money for each of the previous 8 years and the club did not have a reserve of cash to meet shortfalls. The club undertook a series of initiatives to reduce expenditure and also decided to focus on marketing in order to increase the membership.

They also decided to terminate the PGA professional's contract, and this happened in March 2018. It was also decided to take the golf shop under control so that it would generate money for the club. They could no longer pay the members insurance and sough an arrangement to pay by instalments over a year and also arranged phased payments of GUI membership fees. Pension contributions for the staff were also stopped. They also had to extend credit with their suppliers. The independent auditors report for the year ending 2017 cast doubt on the club's ability to continue trading.

The Secretary of the club said that they had no option but to make the Complainant redundant as the club was losing money since the crash. He said the Complainant is a member of the golf club and all members including him were well aware of the financial position of the club. At the AGM in November 2017 the audited accounts for the year were presented to the members and most of the meeting was taken up with a discussion about the financial situation of the club. From 2010 onwards, all members of the club were aware of the financial situation and that costs had to be cut. Three people at the office were made redundant in 2012 and in 2014 two greenkeepers were made redundant. In 2016 the GUI informed the club that is was not operating to best practice. The Members adopted a new constitution and established a management committee and gave the chairman, the secretary and the treasurer a longer period in office. Members voted to have more consistency in the management of the club and wanted the financial problems within the company addressed.

The new committee came into office in November 2017 and immediately set about sorting out the financial problems in the club. Having carried out a cash flow projection it was shown that the company would run out of money by March 2018, if immediate action was not taken to rein in spending. The decided that they would terminate the services at the PGA professional who also ran the club’s shop in March 2018. They took on a casual employee to run the shop and sell off all the existing stock. They had a meeting with SIPTU and course employees in December 2017 where the union was seeking a restoration of pay cuts. It was proposed that the three greenkeepers would get a 5% restoration in their pay and that the Complainant’s pay would be cut by €4,000 to restore the wages to the 3 people. This offer was rejected by the Complainant.

The management committee looked at other options through January and February in relation to saving money. It was decided that they would discuss with the Complainant a retirement package together with a lump sum payment. They set up a meeting with the Complainant, but he refused to attend and said he did not want to discuss financial issues. A decision was made by the Management Committee on the 24th of April 2018 to make the Complainant redundant. In order to pay the lump sum, they had to borrow money from the bank on a 3-year term loan. When they had secured the money, they called the Complainant to a meeting on the 14th of May 2018. He attended the meeting with his Union representative and he was informed about the redundancy and he was given 8 weeks’ notice.

The Secretary accepted that there was no prior consultation with the Complainant prior to the redundancy but he said that had the meeting he had arranged in March happened he would he would have been told at that meeting about the prospects of being made redundant. He said there was no alternative to making the Complainant redundant as he was the highest paid member of the course staff. The Complainant was paid €60,000 per annum and the 3 gamekeepers were paid €30,000 each per annum. Wages was one of their biggest outgoing, so it was necessary to make staff on the highest wage redundant otherwise 2 of the 3 greenkeepers would have to be made redundant.

The Secretary denied that there were any full-time employees taken after the Complainant was made redundant. A casual employee was taken on for a short time to run the shop and dispose of merchandise after the Professional Golfer was let go. A Marketing Consultant was taken on to promote the club and sell golfing slots, but he was self-employed and invoiced the club every month in the region of €1,100 per month.

It was submitted that the Complainant was dismissed following an extensive process for reasons of redundancy. The Respondent had been managing financial difficulties for 8 years and throughout that time had sought to maintain the level of employment within the golf club. All reasonable efforts were made to fix the finances of the club, but these efforts were unsuccessful. The reason for the Complainant’s dismissal was the need for the Respondent to reduce expenditure.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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. …

Selection for Redundancy

Sub section (3) 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, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(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,

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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 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 omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph(d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section

Section 7(2) of the Redundancy Payments Act 1967 as amended 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 his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

The first matter I must consider is whether there was a genuine redundancy situation. The Complainant’s case is that there was no economic justification for the redundancy. The Respondent's case is that the club was losing money for the previous 8 years and despite several cost-cutting measures they still needed to reduce costs by reducing the wage bill, as it was one of their highest outgoings. I note that the Complainant accepted in evidence that the financial situation in the club was fragile and that he might be made redundant.

I am satisfied from the evidence presented by the Respondent in relation to the club’s financial position that the finances of the company were in decline for about 8 years despite cost-cutting measures taken over period of time. I note that the audited accounts for the 2017 financial year concluded that the financial situation was dependant on the club’s commitment to control costs and generate extra income and if unsuccessful the ability to continue as a going concern was in doubt. Likewise, I note the Management committee report concluded in early 2018 that the financial position had not improved sufficiently, and the club would run out of money if further cost-cutting measures were not implemented. I am satisfied therefore that a genuine redundancy situation existed as a Respondent decided to carry on the business with fewer employees.

The Complainant claimed that he was unfairly selected for redundancy and that the Respondent should have considered offering redundancy to one of the greenkeepers. He also said that the Respondent should have looked at alternatives to redundancy and that he should have been given an opportunity to make alternative suggestions. It was further submitted that the Respondent failed to consult or warn the Complainant about the possibility of redundancy and no attempt was made to follow any procedures in relation redundancy. In addition, no objective criteria were made in selecting the Complainant for redundancy.

Section 6 (3) of the Unfair Dismissals Act cited above sets out the conditions where a dismissal for redundancy purposes may be unfair. I will now examine the evidence to see if the Complainant was in similar employment to any of the other employees retained in the employment and determined if he was unfairly selected for redundancy. The EAT in the case of Employee v Employer UD1451/2010 in considering section 6(3) stated:

“For this section to apply there must be other employees in similar employment to whom the

circumstances constituting the redundancy applied equally.”

In considering this matter, I note that the Complainant was employed as a course superintendent and there was no other person employed in this role in the golf club. He had a range of responsibilities in connection with the maintenance of the golf course and the supervision of 3 greenkeepers. Therefore, the Complainant's position was a unique position and he was not in similar employment to the three greenkeepers who were retained in the employment. Even if he was similar employment, I note that in order for the Respondent to achieve the same level of savings required that 2 greenkeepers would have to be made redundant.   The Complainant also argued that he should have been considered for the position of marketing manager. I note that the person who took up that role was not an employee. He was self-employed and engaged on completely different terms and conditions than that which the Complainant enjoyed. The Respondent’s Treasurer said he took over the role of treasurer in March 2016. The club had lost a lot of money for each of the previous 8 years and the club did not have a reserve of cash to meet shortfalls. The club undertook a series of initiatives to reduce expenditure and also decided to focus on marketing in order to increase the membership.

They also decided to terminate the PGA professional's contract, and this happened in March 2018. It was also decided to take the golf shop under control so that it would generate money for the club. They could no longer pay the members insurance and sough an arrangement to pay by instalments over a year and also arranged phased payments of GUI membership fees. Pension contributions for the staff were also stopped. They also had to extend credit with their suppliers. The independent auditors report for the year ending 2017 cast doubt on the club's ability to continue trading.

The Secretary of the club said that they had no option but to make the Complainant redundant as the club was losing money since the crash. He said the Complainant is a member of the golf club and all members including him were well aware of the financial position of the club. At the AGM in November 2017 the audited accounts for the year were presented to the members and most of the meeting was taken up with a discussion about the financial situation of the club. From 2010 onwards, all members of the club were aware of the financial situation and that costs had to be cut. Three people at the office were made redundant in 2012 and in 2014 two greenkeepers were made redundant. In 2016 the GUI informed the club that is was not operating to best practice. The Members adopted a new constitution and established a management committee and gave the chairman, the secretary and the treasurer a longer period in office. Members voted to have more consistency in the management of the club and wanted the financial problems within the company addressed.

The new committee came into office in November 2017 and immediately set about sorting out the financial problems in the club. Having carried out a cash flow projection it was shown that the company would run out of money by March 2018, if immediate action was not taken to rein in spending. The decided that they would terminate the services at the PGA professional who also ran the club’s shop in March 2018. They took on a casual employee to run the shop and sell off all the existing stock. They had a meeting with SIPTU and course employees in December 2017 where the union was seeking a restoration of pay cuts. It was proposed that the three greenkeepers would get a 5% restoration in their pay and that the Complainant’s pay would be cut by €4,000 to restore the wages to the 3 people. This offer was rejected by the Complainant.

The management committee looked at other options through January and February in relation to saving money. It was decided that they would discuss with the Complainant a retirement package together with a lump sum payment. They set up a meeting with the Complainant, but he refused to attend and said he did not want to discuss financial issues. A decision was made by the Management Committee on the 24th of April 2018 to make the Complainant redundant. In order to pay the lump sum, they had to borrow money from the bank on a 3-year term loan. When they had secured the money, they called the Complainant to a meeting on the 14th of May 2018. He attended the meeting with his Union representative and he was informed about the redundancy and he was given 8 weeks’ notice.

The Secretary accepted that there was no prior consultation with the Complainant prior to the redundancy but he said that had the meeting he had arranged in March happened he would he would have been told at that meeting about the prospects of being made redundant. He said there was no alternative to making the Complainant redundant as he was the highest paid member of the course staff. The Complainant was paid €60,000 per annum and the 3 gamekeepers were paid €30,000 each per annum. Wages was one of their biggest outgoing, so it was necessary to make staff on the highest wage redundant otherwise 2 of the 3 greenkeepers would have to be made redundant.

The Secretary denied that there were any full-time employees taken after the Complainant was made redundant. A casual employee was taken on for a short time to run the shop and dispose of merchandise after the Professional Golfer was let go. A Marketing Consultant was taken on to promote the club and sell golfing slots, but he was self-employed and invoiced the club every month in the region of €1,100 per month.

It was submitted that the Complainant was dismissed following an extensive process for reasons of redundancy. The Respondent had been managing financial difficulties for 8 years and throughout that time had sought to maintain the level of employment within the golf club. All reasonable efforts were made to fix the finances of the club, but these efforts were unsuccessful. The reason for the Complainant’s dismissal was the need for the Respondent to reduce expenditure. The next question for consideration is whether the Complainant was dismissed in contravention of fair procedures. I was asked to apply the caselaw in the case of Boucher cited above where the EAT held that the dismissal for redundancy was unfair because the employer failed to consult the employees selected for redundancy. I note that the Respondent called the Complainant to a meeting in March to discuss the finances of the club, but the Complainant refused to attend when he learned the purpose of the meeting and no further meeting was arranged prior to the notification of redundancy. It is clear that the Complainant would have been consulted had he attended that meeting.

In the case of Nigrell v Sandra Graham UD690/2013 the EAT considered the consequence of a failure to consult and stated:

“The Respondent’s representative accepted that there was a valid redundancy situation and that the Respondent’s complaints related to a failing on the employer’s part in affording fair procedures.

The Tribunal was not persuaded by the Respondent’s arguments that in all instances an employer must

(a) afford the affected employee an opportunity to respond to the proposed redundancy or

(b) facilitate the employee by having a representative present or to have the employee’s views     on the redundancy fairly and impartially considered or

(c) have a right to appeal the decision to make the employee redundant.

Such may be good and prudent practice and is probably found in larger enterprises. However, the Tribunal is not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them. Such practices may be negotiated or contractually provided for but in the instant case they are not legally required to be recognised such that a failure to do so recognise would result in a genuine redundancy being considered as an unfair dismissal. For that reason the Tribunal disagrees with the findings of the Rights Commissioner and determines that the employee was lawfully dismissed by reason of redundancy.”

Applying the above caselaw I am satisfied that the failure of the employer to consult the Complainant prior to making the decision to make him redundant does not automatically render the dismissal unfair.   For all the above reasons, I am satisfied that the Complainant was dismissed for reasons of redundancy and that the selection was not unfair.

I find that the Complainant was dismissed for reasons of redundancy and that the dismissal was not unfair.

Unfair Dismissals Act, Selection for redundancy, fair procedures.