Complainant

Respondent

Anonymised Parties

Business Development Manager

Tourist Entertainment Company

Representatives

MP Guinness BL, David Hickey of Crowley Millar Sols, Karen Keogh

Brendan McCarthy & Robert O’Neill of Stratis, Jude Lagan, Gerard Heffernan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030049-001

02/08/2019

The Complainant was employed as a Business Development Manager from 27th November 2017 to 16th February 2019. He was paid €60,000 per annum. He has claimed that he was unfairly dismissed and has sought compensation.

The Complainant stated that prior to formal commencement of employment he had assisted the company for a period of 18 months with start-up. A delay in obtaining funds, building costs overruns and completion delays resulted in the company going into examinership. The Complainant’s family and himself had assisted with the funding. Following the receipt of extra funding it came out of examinership on 5th September 2018. From time to time the Complainant would raise the issue of his in-laws’ loan. This led to some friction between the Complainant and the Directors. On 2nd January 2019 the Operations Manager who also acted as HR Manager gave advice by email on the potential dismissal of the Complainant. The email stated that following advice from the company’s employment law representatives they would not stand over such a dismissal. They suggested that the Complainant could be given a different role or managed out of the business and following the correct procedures. A further email followed on 10th and 11th January which advised that the Complainant should be placed at risk of redundancy and then confirm a date of actual redundancy. It was recommended that this would be done over two meetings.  On 11th January 2019 the Complainant was called into the office of the Chief Executive Officer and the HR Manager and he was told that as the company was not trading well and his position was being placed at risk of redundancy. This was confirmed in writing. At this meeting the Complainant offered to work part time or agree to a temporary lay-off. The Respondent said it would revert to him. On 16th January he received a letter confirming that he was to be made redundant. No meeting or discussion took place with the Complainant. No alternatives to redundancy were discussed or selection criteria. The employment terminated on 16th January 2019. This was a sham and bogus process designed to arrive at a predetermined outcome, the dismissal of the Complainant. The day that the Complainant’s employment ended his position was advertised thereby confirming that the redundancy was a sham. They cited Charleton J. in JVC Europe v Panisi [2011] IEHC 279 , EAT case UD478/88 Keenan v Gresham (1988), Daly v Hanson Industries Ltd UD 719/86 Watling & Co v Richardson (1978) EAT 774/77 and Boucher v Irish Productivity Centre 9992) in support of their position.

He was denied the right to representation, there was abject failure on the part of the Respondent to engage and the redundancy was a sham. This is an unfair dismissal and he has sought compensation.

He took up employment on 18th January 2019 working as a tour guide. He is happy working at this and has not sought to find a position akin to what he had been doing. He is undertaking an educational programme to enhance his earning capacity as a tour guide.

I note the involvement of the Complainant with this venture prior to his employment formally commencing.

I note the financial connections with him and his in-laws which gave rise to difficulties in the working relationship.

I note the rather damning emails from the Operations Manager who also acted as HR Manager to this company regarding the dismissal of the Complainant.

I find that this evidence was not disputed.

I find that the Respondent decided to dismiss the Respondent.

I find that following external advice from their employment law advisers they decided that they would implement a redundancy situation to deal with the termination of his employment.

I accept that the company had financial difficulties and they needed to address their cost base.

I find that the Respondent decided to ‘engineer’ a redundancy situation in order to terminate his employment.

I find that this was not a genuine redundancy.

I find that there was a predetermined approach utilised to make it appear to be procedurally sound, but it certainly was not.

I find that the Respondent failed to properly address the need to reduce costs.

I find that they failed to clearly identify what positions were at risk and to openly address this.

I find that there was no effort to engage with the Complainant and they just went through the motions to make it appear to be a genuine redundancy, which it was not.

I find that the Respondent failed to advise the Complainant in advance of the first meeting on 11th the purpose of that meeting and his right to accompanied.

I find that the Respondent failed to engage with the Complainant on alternatives to redundancy.

I find that the Respondent failed to set out clearly the selection criteria to be utilised.

I find that the Respondent failed to give the Complainant the right to appeal the decision to make his position redundant.

Overall, I find that this was not a genuine redundancy but rather a clumsy effort to make it look like one.

I find that the Complainant was denied all fair procedures.

I find that this dismissal was both substantively and procedurally unfair.

I find that the Complainant is entitled to compensation for the unfair dismissal.

I note that the Complainant found employment as a tour guide two days after his dismissal, which should be commended.

I note that he gave direct evidence that he was very happy with his role as a tour guide.

I note that he has undertaken education to enhance his career in this field.

I note that he also gave evidence that he did not apply for any position akin to what he had previously held as he was very happy doing what he was doing despite him earning considerably less.

Therefore, I find he has not suffered a financial loss as a result of the dismissal, seeing that he is working happily at role that he rather likes despite its limited earning capacity.

Sec 7 (1) (c) (ii) of the Unfair Dismissals Act 1977 which states, “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

Therefore, I find that the maximum compensation that may be awarded is four weeks as per Sec 7(1) (c) (ii) above.

Not a genuine redundancy