Complainant

Respondent

Anonymised Parties

A Senior HR Manager

A Global Management Company

Representatives

Anne O'Connell Solicitors

M P Guinness BL, instructed by Eversheds Sutherland Solicitors

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-00030106-001

07/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030106-002

07/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00032437-001

22/11/2019

The complainant submits she was unfairly dismissed under the guise of redundancy and she was discriminated against on the grounds of race and gender in not receiving an ex-gratia payment when she left the respondent’s employment and in not receiving equal pay in relation that the ex-gratia payment. The respondent states there was a genuine redundancy and the complainant had no entitlement to the ex-gratia payment.

CA-00030106-002 was withdrawn at the hearing.

The respondent submits that as part of a significant global reorganisation in 2018, which involved the implementation of a new regional HR model, the complainant was one of a number of individuals globally whose roles were terminated by reason of redundancy owing to the need to reorganise, reduce costs and to continue operating with fewer employees. Prior to the reorganisation the complainant had responsibility for a number of global areas; including Europe, India and Australia. Under the new regional model, senior HR roles were organised in relation to geographic location. The region created in the complainant’s geographic location was UK/Europe. Due to the size of this region it did not require a dedicated senior HR role such as the role occupied by the complainant.

In these circumstances, and following a consultation period with her, the complainant’s role was made redundant. The role has not been replaced and her former position remains redundant.

On 17 December 2018 the complainant met the Senior Vice President to whom she reported. She was told her role was at risk of redundancy and options for redeployment were discussed. The Senior Vice President said he would explore redeployment options and revert to the complainant in early January 2019. The complainant was asked to consider her own mobility, as a number of possible options were located overseas.

The Senior Vice President put the complainant forward for a role in Switzerland and explored the possibility of roles in the UK. Given her seniority there was no suitable role in Ireland. There was a further discussion on 9 January 2019 when the complainant said she did not want to explore any more redeployment options, and she confirmed she was not interested in pursuing the vacancies in Switzerland and London any further. She said she wanted to see the exit terms with a view to reaching agreement. At the time she did not suggest she did not get a proper opportunity to input into that process.

As she no longer wished to pursue a redeployment role a notice of termination of employment by reason of redundancy was issued to the complainant on 16 January 2019. She was paid her statutory redundancy entitlements. Also €2,000 was paid in respect of employment services, at the request of the complainant. She was provided with, but did not sign, a compromise agreement. She requested an increased ex-gratia offer and when the respondent confirmed that no further ex-gratia payment could be offered she passed the matter to her solicitor.

The complainant started working for the respondent on 18 August 2010 and held the position of Vice President, Human Resources, Oil and Gas before being dismissed on 8 February 2019, allegedly by reason of redundancy. She was one of three who held this position.

Between 5 – 10 November 2018 the respondent’s HR leadership team attended a team building strategy session, wherein it was stated the Executive Vice President of HR understood the need for three Vice Presidents in HR within oil and gas.

In late November/early December the complainant and her two VP colleagues were contacted by the Senior Vice President asked them for their scope in terms of mobility and for any limitations. This was asked in advance of a senior HR leadership conference which would discuss succession planning and talent management. The complainant indicated she would be open to a relocation to Abu Dhabi and Singapore in particular and would be open to discuss other potential opportunities.

Following a call on 12 December 2018 with the Senior Vice President HR to arrange a meeting on 17 December she was sent a letter which stated that a potential redundancy situation had arisen due to the implementation of a new global regional HR model and her role was at risk. This was confirmed at the meeting on 17 December but it became clear that the process was already pre-determined and there was no meaningful consultation. No details of alternative positions were provided at the meeting but it was made clear to the complainant that any alternative position would involve a relocation and downward adjustment of her remuneration package. Furthermore, there was no selection process between herself and her two colleagues holding the same positions, who were based in Dubai and Texas.

In relation to the alternative roles. The role in Switzerland was more junior and because of this and the location was not a financially viable option. She was not offered the job but only an opportunity to interview for it. She felt there were no other alternatives. The discussion about the UK was very general and no actual role was ever put to her.

Due to the stress of everything the complainant was quite unwell for a period in December and January 2019 but she continued to work from home.

On 8 January she had a general update call with the Senior Vice President about alternative roles and the complainant got very upset as no viable alternative to redundancy was being put forward. The following day she sent him an email saying no viable alternatives were being put forward. On 16 January the respondent sent the complainant a letter notifying her that her role would be made redundant on 31 January 2019 and she would not be required to work the remainder of her notice period. On 24 January she was sent a draft severance agreement which excluded an ex gratia payment and there was correspondence between the parties.

The complainant submits she was unfairly selected for redundancy, there was no discussion as to how she was selected, no proper consultation and no real alternative positions were available; this amounts to unfair dismissal.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company. 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.

(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”

Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“7(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”

 In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”    

Judge Charlton recited two specific legal requirements in effecting a legitimate redundancy, both of which are directly relevant to the instant case; The first is Section 7(2) of the Redundancy Payments Act 1967, as amended by Section 4 of the 1971 Act, and by the Redundancy Payments Act 2003, wherein Section 5 (2) 1 requires that “(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 … “ five listed grounds.

Thus, highlighting the essential requirement of “impersonality” in effecting a fair dismissal on grounds of redundancy, noting later that in St. Leger v Frontline Distributors Ireland Ltd [1995] E.L.R 160 at 161 to 162, an EAT Chairman stated that “Impersonality runs throughout the five definitions in the Act.”

In this case, Judge Charelton remarked that “It may be prudent and a mark of a 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”.

I have carefully considered all the evidence given by the respondent and the complainant. It is clear the complainant was genuinely shocked by the redundancy, particularly given the reassurances given at the team building strategy meeting in November. However, I do accept that the respondent undertook a reorganisation in their HR function. I also accept that the complainant’s role no longer existed. Other HR roles resulted from the re-organisation but, because of the geographical nature of the re-organisation, the complainant was not considered for any of these, as there were suitable people already in the right locations.

The next area to consider is consultation about alternative roles. The respondent says there was an initial discussion at the meeting on 17 December and two possibilities, in Switzerland and UK, were discussed. It was agreed that the discussion would be resumed in early January. In a discussion on 9 January the complainant said she did not want to pursue any alternative roles, including those in Switzerland and UK, and asked about the exit package. She says the meeting on 17 December made it clear to her that there were no viable alternatives. The role in Switzerland had less responsibility attached to it and was financially unviable. No specific role in the UK was put to her. No further roles were mentioned or put to her in the discussion on 9 January.

The complainant was unhappy at the re-organisation and that her role no longer existed. In these circumstances she found it difficult to engage in any discussion about alternative roles. Also, it appears to me that the Senior Vice President was very unprepared to discuss alternatives, either at the meeting on 17 December or in the discussion on 9 January.

In the situation before me I conclude there was an onus on the respondent to make the complainant aware of alternative roles that existed, particularly in such a worldwide organisation. However, taking into account her experience in a senior position in HR, there was also an onus on the complainant to engage with the respondent, in looking at the alternatives put to her and to clarify what would be acceptable. The respondent was dilatory in identifying actual roles they saw as possible alternatives for the complainant. However, I conclude the complainant withdrew from the process before it was exhausted.

I therefore conclude that there was a genuine redundancy situation and the respondent has shown that the dismissal was not unfair.

The complainant submits that when she was dismissed she was discriminated under the Employment Equality Acts in relation to equal pay on the grounds of gender and race. This came about when she did not receive an ex-gratia payment which had been paid to two named comparators. When she asked the respondent why she had not received this payment she was told that no one had received this payment since May 2017. She submits that the first named comparator, who was made redundant in Ireland in July 2017, received this payment after the respondent claims it was stopped. The second named comparator received an ex-gratia payment when he was made redundant whilst working for the respondent in South Africa.

The respondent submits they ceased the practice of ex-gratia payments in respect of redundancy in May 2017 and therefore the complainant has no entitlement to such a payment.

The first named comparator threatened legal action when he was refused the payment. The respondent decided to enter into a settlement with the comparator to resolve a legal dispute. No one made redundant in Ireland since June 2017 has received an ex-gratia payment. This includes both men and women.

The second named comparator was paid an enhanced exit package due to issues related to his employment; this was not an ex-gratia redundancy payment. The decision to make a payment was a commercial one based on legal risk and local legislation in South Africa.

Section 29 (1) of the Employment Equality Acts states:

“It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.”

Before I look into whether like work was undertaken by the complainant and the two named comparators I will look at the respondent’s submission in relation to section 29 (5) of the Employment Equality Acts, which states:

“nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.”

The respondent has given details that both named comparators received payments when they were made redundant but neither were ex-gratia payments, as identified by the complainant. Rather, they were payments made due to the particular circumstances of the individuals’ departures.

I accept the evidence of the respondent that the ex-gratia payment had been stopped in Ireland before the complainant was made redundant. Also, the payments made to the comparators were not ex-gratia payments, as identified by the complainant. I therefore conclude there were reasons other than the discriminatory grounds identified why the complainant did not receive the ex-gratia payment.

CA-00030106-001

For the reasons given above, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find this complaint is not well-founded and conclude that the Complainant was fairly dismissed by the Respondent.

CA-00032347-001

For the reasons given above, pursuant to Section 79 of the Employment Equality Act 1998 – 2015, I find the complainant has Failed to prove a prima facie case of discrimination in relation to equal pay and the complaint is not well-founded.

Key Words: Dismissal – redundancy – equal pay – reasons other than discriminatory grounds