Complainant

Respondent

Anonymised Parties

A Project Manager

A Software Development Company

Representatives

None

Rosemary Mallon BL instructed by Mason Hayes & Curran

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-00027101-001

15/03/2019

The complainant worked for the respondent from the 14th May 2007 to 18th September 2018. He was paid €6,395.85 per month. His employment ended on grounds of redundancy. The complainant asserts that this was an unfair dismissal, while the respondent rejects the claim.

The complainant submitted that his dismissal was wholly or mainly arising from a protected disclosure. This issue arose from the emails of 10th to 11th May 2016 where he raised data protection issues arising from an email of the 10th May 2016. He suggested ways to help in the email of the 18th May 2016. He raised the issue again in November 2016. The respondent did not appear to feel that there was a data protection issue, especially for those working in the European Union.

The Data Protection Commission (‘DPC’) replied on the 27th May 2016 to say that the information was personal data. The complainant sent the respondent UK and Irish information on data protection. The respondent had invested into a time management system, where the time people took on tasks was shared with all staff.

The complainant said that he made the disclosure in May 2016 and raised it again in November 2016. He raised other data protection issues with the respondent, but this was the only protected disclosure.

The complainant said that his dismissal was also unfair as it was wholly or mainly due to the “proceedings”, i.e. the consideration by the DPC of his complaint against the respondent.

The respondent’s letter to the DPC was in July 2018, six weeks before his dismissal. The issues set out in the letter supersede those he had raised in May 2016.

The complainant outlined that he started on the 14th May 2007 and the respondent was bought over in 2014. He said that his redundancy was not transparent as the head count information and resource plans were not shared. The financial information was also not shared. There was no process or selection procedure. He said that his work is still being done in Ireland. He submitted that the role was not made redundant, but he was made redundant. He accepted that there had been four project managers in 2014 and by 2018, he was the only one remaining in Ireland.

The complainant said that there was a purported restructuring, but this only impacted on one person, him. It was not an objective redundancy and it was his redundancy. The announcement was only to him. He had no visibility of what happened in other offices. There was no general email to staff about redundancies. No profit warning was issued. He said that there was a lack of engagement on alternatives or alternatives were blocked. He was told that there were “unsuitable” jobs in the UK. The respondent would not give the data behind the redundancies, so the complainant could not come up with alternatives. He said that the second consultation was a rubber stamp and there was no proper exploration of alternatives.

The complainant said that the notice was totally unexpected as this was a normal time. He said that he had a reasonable workload and the nature of the role was that it was up and down. His redundancy was a fait accompli.

In respect of the projects he handed over, he said that projects early in their life cycle were handed over to the Far East and Romania. The one handed over to the Caribbean office was mid-life cycle. The one handed over to the UK office and was less than half way and retained in Ireland. The Swiss project was on wind down and he thought that this was retained in Ireland.

The complainant said that his dismissal was penalisation for the protected disclosure. The disclosure related to the data protection breach, raised internally and then to the DPC. The issue was bubbling around and kept coming up. He referred to the email of the 9th March regarding a time management system. He said that the data breach related to the statements of the names of staff and their hours.

The complainant said that he was threatened by HR for referring the matter to the DPC. They implemented a disciplinary action. He referred to the email of the 15th March regarding use of the time management system. Every time he came in and out, the respondent could use swipe card data from the building landlord to prosecute a disciplinary case against him. The DPC intervened and the respondent withdrew that part of the case against him. The respondent continued with the disciplinary action on other grounds, including his allegation of fraudulent business dealings. The respondent issued a final written warning in 2017.

The complainant said that his “whistleblower” email of the 23rd March 2017 led to the disciplinary procedure. He commented that data breaches can be prosecuted criminally.

In respect of mitigation, the complainant said that he had sought new employment but had not been able to find work. He had applied for roles and attended interviews. He said that it is harder to find work as a mature applicant. He started an Agile course in March. While the course was delivered three mornings per week, it was effectively a full-time course. It finished on the 3rd July and would help him secure a broader role. He commented that project manager vacancies advertised required less experience and came maybe with less remuneration.

In cross-examination, the complainant said that the course he undertook was full-time and he wanted to give it justice. He said that he kept his eye on the jobs market. He said that his salary had been €75,000 per year and he applied for roles with a lower starting salary, for example those requiring five years’ experience. He said that a job advertised requiring 3 to 5 years of experience did not want him. He attended three interviews in late 2018 and two in 2019.

The complainant accepted that he was paid six weeks’ notice up to the end of October. He said that he was available for work from November to February and commenced the course from March.

The complainant said that he did not appeal as he had been through appeals processes before. It was put to the complainant that he did not appeal because he accepted that this was a genuine redundancy; he replied by stating that he had appealed previous issues and his whistleblowing complaint was the basis of disciplinary action against him.

It was put to the complainant that the letter of the 7th September 2018 sets out that his redundancy was being considered and there would be a meeting and an opportunity for him to ask questions and to put forward suggestions; he replied that he had asked questions but was not given answers. He was also not given the process.

It was put to the complainant that he had ended the meeting of the 11th September 2018 by saying that he had no more questions; he replied that he had asked questions but got ‘stonewall’ answers. It was put to the complainant that he was given answers, for example in the manager’s emails; he replied that he was not given the figures he sought. He was asked whether he had to be provided with all the financial information; he replied that the respondent previously circulated financial and head count information but did not do so on this occasion. He said that the targets were meaningless.

It was put to the complainant that he was provided with the relevant information to show the business reasoning behind the reduction; the complainant rejected this. It was put to the complainant whether his case was that there had to be a profit warning to justify a redundancy; he replied that it was common that profit announcements preceded redundancies. He said that the question is whether they are following a genuine redundancy process. He had no visibility of the redundancies in other offices. He questioned where the announcements of these redundancies were. He had been the last project manager in Ireland and understood that some of the work went to Romania. He did not accept that the Caribbean project went to the Lebanon office. It was put to the complainant that a named colleague in Ireland was only doing technical roles; he replied that the customers were done out of a project manager.

In closing, the complainant submitted that the redundancy was not transparent. Documentation that was cited was not provided, including head count information, resource plans and financial data. His dismissal was out of the blue. Project management was done by others both before and after his role ended. This was a personal redundancy and alternatives were blocked. It was a sham redundancy and a rubber-stamping exercise.

The respondent submitted that the alleged protected disclosure was made in May 2016, some two years prior to the redundancy. It outlined that no criminal proceedings were instigated. The respondent submitted that raising a query or an issue is not the same as “threatened” proceedings. Raising an issue is not a disclosure within the Protected Disclosures Act. Without prejudice to this, the respondent submitted that the termination of the employment two years later shows that the dismissal did not wholly or mainly arise from the disclosure. It outlined that the respondent’s letter of July 2018 was not related to the issues raised in the protected disclosure. The respondent emphasised that this case, in essence, related to redundancy.

Evidence of the line manager

The line manager outlined that the respondent is a provider of value-added services to mobile networks globally and provide turn-key solutions that are installed with mobile operators. The line manager was the complainant’s line manager in Ireland. The complainant was a project manager and worked in the Caribbean, Europe and other telecoms markets. A project manager needs to execute the project within timeframe and budget to the client’s satisfaction and meeting the respondent KPIs. There was technical support for the project manager, including planning engineers and PSA’s. In 2014, there were three or four project managers based in Ireland and by 2018, the complainant was the last one. The other project managers were not replaced when they left. The respondent had offices around the world and had project managers in lower cost locations (Lebanon and Romania). The bulk of the projects in Europe, Africa and Asia were based in the Lebanon.

The line manager said that Solutions Architects were not Project Managers. The line manager said that at the time of the complainant’s dismissal, the respondent was below target and the professional service unit was 35% behind target. He said that this was the reason for the redundancies. There were others effected in the business unit, for example engineers in Kenya and Lebanon and a project manager in Romania. It affected one person in Ireland. There had been 21 staff in Ireland in 2014 and this reduced to 14 by 2018.

The line manager said that the complainant attended the meeting of the 11th September on foot of the letter of the 7th September 2018. The line manager said that the respondent now had a project manager dedicated to Ireland and based in Romania, although not in the respondent’s head count. The line manager said that the complainant’s work had been distributed to project managers in other offices.

The line manager said that the letter of dismissal (18th September 2018) sets out the grounds of dismissal. It cites the right to appeal and the complainant did not avail of this right.

The line manager said that he did not know what project manager roles were available, but other project managers were able to find jobs rapidly and the complainant should have been able to find alternative employment.

In cross-examination, the line manager was asked whether the revised structure mentioned in the letter of the 7th September was provided to the complainant; he replied that this had been dealt with at the meeting. He had told the complainant that restructuring had occurred in other teams. It was put to the line manager that there was no published restructuring document and he had asked for head count plans; the line manager replied that the respondent had not provided head count plans or organisation charts. The line manager could not recall any request for an organisation chart, nor of a resource planning document. The complainant said that he had requested this in the email of the 17th September 2018.

The line manager confirmed that there was no project management being done in Ireland and that relationships were managed by other offices. It was put to the line manager that the complainant handed work over to the named colleague, which were managed out of Ireland (one in the UK and in the Caribbean) and while his title was not project manager, the complainant’s role continued; the line manager replied that the respondent had a solutions architect based in Ireland who is not a project manager. This person does not manage budgets and timeframes, although has contact with the customer. He does more than an engineer would. This person was not assigned additional customers. The Caribbean project is no longer managed out of Ireland. He said that the Caribbean and UK projects are now managed as technical solutions and no project manager is assigned. The line manager and the colleague now managed the customer.

The line manager outlined that they had talked through the process and went through the consultation. It was put to the line manager that the complainant had asked for the procedure on the 10th September; the line manager outlined that his reply was that this would be clarified at the meeting. It was put to the line manager that the complainant had asked for the headcount plans, resource planning, financial information, process documents, but was only provided with a targets document. The line manager was asked whether the respondent had issued a profit warning; he replied that he did not know of any. The line manager said that the professional services department was behind, and its figures were not going well. It was put to the line manager that the complainant never received any profit warning, and it was a record year for the parent company, for example in their annual report and third-quarter report. The line manager replied that the parent company runs a profitable business and ensured that each unit was profitable. The line manager said that the respondent had to cut costs.

The line manager accepted that at the meeting of the 11th September, it was stated that there were no alternative roles and no pooling. It was put to the line manager that the complainant needed the head count and service plans in order to find alternatives; the line manager said that it had the data and made decisions in respect of the business. He did not know how the complainant could have obtained head count information for other businesses. It was put to the line manager that the notes of the 18th September refer to restructuring being carried out as the “company sees best”; the line manager accepted this and that they had looked at allocating people across several offices, citing those in Malaysia, Brazil, Lebanon, Romania, Kenya and Ireland. It was put to the line manager that it was obvious that the decision was already made, and this was not a consultation; the line manager replied that the alternatives available in other offices were provided and the complainant could also put forward any suggestions he had.

In closing, the respondent submitted that the project manager role was not filled in the Irish office. There had also been other redundancies. The complainant was not replaced, and his work was redistributed. There had been a clear process and the complainant was given the quarterly targets. The respondent submitted that the complainant had asserted that he was best placed to assess whether he should be made redundant, but this was a flawed proposition. The complainant accepts that the alternatives were not appropriate. It submitted that the process was fair, and the complainant had not challenged the process as a sham in any appeal.

The respondent submitted that the issues amounting to the protected disclosure arose in 2016. This did not constitute relevant wrongdoing. The line manager’s evidence was that the dismissal was nothing to do with the data protection issue.

The respondent submitted that the complainant had not mitigated his loss in securing alternative employment. In his evidence, the complainant made assumptions about competency-based interviews. The respondent submitted that at most, the complainant incurred loss from November 2018 to March 2019. It also submitted that the complainant’s efforts to find employment in that time were not sufficient.

The complainant worked for the respondent for 11 years, between the years of 2007 and 2018. He worked as a project manager on projects run from Ireland and across the world. The parent company acquired the respondent Irish company in 2014. The parent operates a global network of offices. It refers to the respondent being in the [respondent] Business Unit (see the line manager’s email of the 17th September 2018). The respondent indicates that reductions were made in Ireland, Romania, Kenya and Lebanon. There were also cuts in Romania and Lebanon to the R&D section.

Statutory framework

Section 6(1) of the Unfair Dismissals Act provides that ‘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.’

A dismissal is automatically unfair under section 6(2) of the Unfair Dismissals Act if it resulted wholly or mainly from the employee having made a protected disclosure [subsection (ba)].

Section 6(4) of the Unfair Dismissal Act provides that a dismissal shall be deemed not to be unfair ‘if it results wholly or mainly from one or more of the following:

… (c) the redundancy of the employee.’

Redundancy is defined in Section 7(2) of the Redundancy Payments Act 1967 – 2014. An employee who has been dismissed is taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to: -

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish, or(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee 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 hence forward be done in a different manner for which the employee is not sufficiently qualified or trained, and/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 henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.’

Applicable case law

In St. Leger v. Frontline Distributors Ireland Ltd [1995] ELR 160, the EAT held ‘Impersonality runs throughout the five definitions in the [Redundancy Payments] Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job … Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in need for employees, or a reduction in numbers. Definition (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words ‘other work’. More work or less work of the same kind does not mean ‘other work’ and is only quantitative change.’

In Panisi v JVC (Europe) [2011] IEHC 297, the High Court held:

‘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 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 s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as 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.’

Further the High Court in Panisi held:

‘It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go should be examined… Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer.’

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd -v- Brigid (Beatrice) Burns UDD1854: “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.” In Burns, the Labour Court noted that the claimant had not been supplied with all company documentation as the board of management proposals were confidential.

In Edwards v Aerials and Electronics (Ireland) Ltd UD236/1985, the EAT considered the case of a Dublin-based MD dismissed following a re-organisation and the employer’s decision to run the company from the Belfast. The EAT held:

“[T]he claimant had raised major doubts as to whether the redundancy was genuine. We recognise that the function of a full-time managing director no longer exists, but we must direct our minds to the cause-and-effect relationship between redundancy and dismissal. The issue was whether he was dismissed because the employer had decided to reorganise the structure of the company, or whether a decision was taken to dismiss him for some other reason. In other words, was the reorganisation a cause or a consequence? On balance, we are inclined to the latter view.”

In respect of fair assessment for selection, the EAT in Boucher v Irish Productivity Centre [1994] ELR 205 held:

‘The Tribunal determined: a) the onus is on the employer to justify the selection of the claimants and each of them for redundancy and b) that in the absence of section 6(3)(b) applying that the dismissals must be considered under section 6(1) and c) that the general redundancy situation in the absence of section 6(3)(b) applying does not deny the individual employee the right to be fairly assessed for selection.’

In respect of fair selection across companies, I note the UK EAT case of Babar Indian Restaurant v Rawat [1985] IRLR 57. Here, the employer operated three separate businesses, one of which was a restaurant. The restaurant owners closed a frozen food business, re-deploying two staff to the restaurant. Mr Rawat was an employee of the restaurant and dismissed to make way for the redeployment. It was held that the restaurant was a separate business from the now-closed frozen food entity. Looking solely within the restaurant business, there was no grounds of redundancy. The claim of unfair dismissal was upheld.

As set out in the ‘Redundancy’ chapter by Terence McCrann in Murphy & Regan ‘Employment Law’: ‘For a redundancy selection to be fair, objective selection criteria must be applied to the correct pool of employees. In particular, the pool of selection must be reasonably defined, and the selection criteria employed by the employer must be applied to all employees ‘in similar employment’.

In the email of the 17th September 2018, the respondent provided detailed information regarding poor performance and decline in the [respondent] Business Unit. I note that the complainant has not challenged the specific percentages of decline stated. I also note that this decline is reported as a decline across the whole Business Unit and not just in respect of the Irish office.

Dismissal wholly or mainly arising from a protected disclosure

The complainant asserts that his dismissal was unfair. Within this, the complainant contends that he was dismissed because he raised data protection issues in 2016 and 2017. The complainant challenged the respondent compiling personal data of its employees from their use of swipe cards. The complainant made a formal protected disclosure as well as the complaint to the Data Protection Commission. On the 6th July 2018, the respondent wrote to the Data Protection Commission to say that it had destroyed data compiled from swipe cards, but that it was entitled to track the complainant’s time to ensure compliance with his contractual obligations. The respondent maintains a system to track billable and non-billable work.

The question is whether the complainant has established that his dismissal was wholly and mainly due to his protected disclosure. In assessing whether the complainant has established this, I note that the complainant raised this issue several times in the period 2016 to 2018. There was correspondence between the respondent and the Data Protection Commission in the months before the complainant’s redundancy. I note that the respondent accepted that it could not use swipe card data obtained from staff entering and leaving the premises.

The respondent provides services to clients and its staff must record their billable and non-billable work (see the email of the 10th May 2016, setting out which staff members were not filling in project hours; the complainant was not on this list). The respondent stood over the requirement to track their hours. There is no question of this being a data protection breach.

Having considered the evidence, I find that the complainant has not shown that his dismissal was wholly or mainly for the protected disclosure. I reach this finding for the following reasons. First, the complainant certainly made a protected disclosure, which was dealt with by the respondent via a designated email address and the designated person. Second, the respondent desisted from compiling and using swipe card data regarding the complainant; the complainant succeeded in this interaction with the respondent. Third, there was ongoing correspondence and the respondent re-stated its position. While the issue was still live, nothing new happened. There is no evidence of the Data Protection Commission raising any other issue regarding the respondent. The mere fact of there being correspondence is not sufficient to indicate that this was the trigger to make the complainant redundant in September 2018. For these reasons, I find that the dismissal was not wholly or mainly due to the protected disclosure.

Dismissal wholly or mainly on grounds of redundancy

As set out above, the Unfair Dismissals Act deems a dismissal to be unfair, unless the employer can show that there are substantial grounds justifying the dismissal, including the redundancy of the employee. As cited in the case law, the burden of proof falls on the employer to show that the redundancy was for ‘reasons not related to the employee concerned’ and that the reasons were ‘impersonal’.

In assessing the evidence and submissions, I note that the respondent cited that they were over resourced within the ‘Professional Services Team, [respondent Ireland]’ following a decline in business. As the sole remaining project manager in Ireland, the complainant was to be made redundant. The respondent stated that there would, therefore, not be a pool of employees (unlike what occurred in Romania).

As was clear from the evidence, the respondent parent entity provides services to clients based all over the world, from numerous offices, including in Ireland. Where ever they are based, the project managers work and are managed across the whole organisation. The email of the 10th May 2016 raises the issue of both engineers and project managers not logging time spent on client accounts. The 2016 Activity report breaks down the hours worked by employees into 25 activities, one of which is project management. Again, staff are dealt with as a whole, wherever they work. While staff are based at different locations and have national employers, they are managed as one transnational group.

The complainant was based in Ireland. He served clients across the world and worked with colleagues across the respondent offices. The respondent parent company managed the project managers, engineers etc as one group; it did not distinguish between location or under which national contract of employment they worked.

The complainant asserts that his dismissal was not genuine as they were still projects to manage and that customers lost out by the cessation of the Ireland project manager role. The complainant asked where the company-wide circular about the pending redundancies was. He only received information about the situation in Ireland, while the decision to make redundancies arose from a reduction in business across the whole business unit.

The respondent asserts that the project management work was spread out to other offices and an Ireland-based colleague did the technical aspects. The respondent pointed to a decline in business and the need to reduce capacity. The respondent emphasised that the Ireland project manager role has not been filled.

In assessing the evidence, the onus lies with the respondent to show that the redundancy dismissal was impersonal and for ‘reasons not related to the employee concerned’. The complainant has not disputed that business was slacking but certainly challenged his selection for redundancy. The questions are why the complainant and why Ireland? The respondent managed a transnational group of employees and project managers, employed by national companies. The complainant was selected for redundancy and his dismissal inevitable in a pool of one. But, why, in this transnational group of employees, was it him?

Applying Edwards v Aerials and Electronics (Ireland) Ltd, I have regard to ‘cause-and-effect’ in the selection of an employee for redundancy. I do not doubt that the respondent reduced its project management capacity in line with business needs. I agree that there is no requirement for a profit warning to justify this. To rebut the statutory presumption of unfairness, the employer must be able to show substantial grounds to justify the dismissal of the employee in question. It must answer the question of why this employee. Having considered the evidence and submissions, I find that the respondent has not established substantial grounds for making the complainant redundant as one of a transnational group of project managers, albeit he was employed by the Irish company. The dismissal was, therefore, unfair.

In assessing redress, I accept the respondent’s submissions. The complainant was paid notice pay until the end of October 2018 and began a course in March 2019. While the complainant sought employment in the interim, it is clear that he found competency-based recruitment processes difficult. Competency-based recruitment processes are not exercising in project management; one will not have the data from the prospective employer. I appreciate the complainant’s position; he worked for many years for an employer and this ended following this disputed redundancy. The respondent has not rebutted the statutory onus provided by the Act and so, I award redress that is just and equitable of €12,000.

CA-00027101-001

For the reasons set out above, I decide that the respondent has not discharged the onus that the dismissal was unfair, so I decide that the complainant was unfairly dismissed from his employment. For the reasons set out above, I decide that the respondent shall pay to the complainant redress of €12,000.

Unfair Dismissal / onus on employer / ‘cause-and-effect’