Complainant

Respondent

Anonymised Parties

A Complainant

Financial Technology Company

Representatives

Wendy Doyle Wendy Doyle Solicitors

Graham Bailey IBEC

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-00030608-001

02/09/2019

The Complainant was employed by the Respondent from 31st October 2017 as Head of Marketing. The Complainant alleges that he was unfairly selected for redundancy and was given notice that this would take effect from 29th July 2019. The Complainant was not entitled to statutory redundancy as he had less than 104 weeks continuous service. The Complainant lodged his complaint with the WRC on 10th September 2019 under the Unfair Dismissals Acts 1997 – 2015.

The Complainant commenced employment the Respondent as Head of Product Marketing on 31st October 2017. The contract of employment (Section 5) stated that “the job title of the employee is Head of Product marketing.   You shall be required to perform such duties as your manager may from time to time delegate.” The Complainant was informed at a meeting on 5th July 2019 that his role was to be made redundant. The Complainant was subsequently informed that this situation arose following a cost and structure review and in that context a decision was made to remove the Head of Marketing position as it did not align with future plans. It is the Complainant’s position that he was not afforded any opportunity to participate in the review process. The Complainant was further informed that his role was closing as the Respondent had to “balance lots of factors such as budget and profit margin targets as well as priorities for where the business is at today and what is needed to help us achieve our strategic 3-5-year goals.” The Complainant outlined his shock at the news, and he attended a further meeting on 8th July 2018 the purpose of which was confirmed “to review potential suitable alternatives.”   The Complainant felt that little was achieved at this meeting in terms of alternative employment options.   He also learned that a colleague who is based in Canada would look after marketing options on an interim basis and there were conflicting updates on when this role would be made redundant.   The Complainant subsequently learned that this role was due to be made redundant in December 2019 some five months after his role was made redundant.

At a meeting on 12th July 2018 the Complainant continued to express his shock at the decision to make the role redundant and he outlined his preference to remain in work and that he enjoyed working with the Respondent. Details of three roles were provided to the Complainant to consider in advance of the meeting. It is the Complainant’s position that two of those roles were clearly unsuitable due to (a) the technical nature of the work and (b) the fact that these roles paid approximately €110k less that what he was currently paid. The pay for the third role was approximately 50% less that current salary.

The Complainant received his official notice of redundancy on 24th July 2019 and this provided for three months pay in lieu of notice and a proposed ex gratia payment of one month’s salary which was subject to him signing a full and final settlement agreement. He was not entitled to statutory redundancy as he has less than 104 weeks continuous service. At that stage the Complainant took legal advice and as the Respondent did not respond to his solicitor’s correspondence, he lodged his complaint with the WRC on 2nd September 2019.   Sometime later the Complainant learned that the Respondent had posted a marketing manager role on LinkedIn in early October 2019. The Complainant was not informed of this role and it is his position that this role “is a hybrid” between his role and that of his colleague who worked in Canada.

The Respondent provides the standard for financial regulatory technology since 2000. It involves the collection, validation and analysis of highly complex data from financial institutions. It currently has 82 employees. The Complainant was employed from 31st October 2017 in the role of Head of Product Marketing. This was a stand-alone role and no other employee in the company carried out the same or similar role. The Complainant was put on notice of the risk on redundancy on 5th July 2019 and was given an opportunity to engage in a consultation process with the Respondent. The position was formally made redundant on 24th July 2019 with a termination date of 29th July 2019. The Complainant was paid 12 weeks salary in lieu of notice in line with the provisions of section 16 of the contract of employment. The Complainant was also offered a severance agreement in exchange for an ex-gratia payment and the Complainant refused to sign this.   The Respondent submits that it behaved reasonably and satisfied the provisions of Section 6(7) of the Unfair Dismissals Acts in relation to the steps taken including meetings and correspondence with the Complainant. The Respondent also submits that it engaged in a two-week consultation process with the Complainant and details of agreed minutes were provided at the hearing.   It was only when all possible alternatives to redundancy were considered that a decision was made to confirm the redundancy of the Complainant’s role. It is the Respondent’s position that it was the role that was made redundant and that the redundancy was genuine and involved a full and fair consultation process. The Respondent also outlined that no selection criteria were required as the Complainant’s role was unique and singular.

At the hearing the Respondent also relied on Barton v Newsfast Freight Ltd, UD 1296/2005, whereby the Tribunal upheld the position on this matter by stating that there could be no finding that the Complainant was unfairly selected for redundancy within the meaning of Section 6(3) of the Act as the Complainant was the only van driver based in the Dublin depot and there were no other employees employed in a similar role.

It is not disputed that the Complainant’s employment terminated on 29th July 2019.     Having carefully considered all the evidence adduced and the respective submissions of the parties, it is clear that while the Complainant contends that there was no genuine redundancy, the Respondent submitted that the termination of the Complainant’s employment constituted a dismissal by reason of redundancy.

Section 7 (2) of the Redundancy Payments Act, 1967 defines “dismissal by reason of redundancy” as

(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, or for employees to carry our work of a particular kind in the place where he was so employed has ceased or diminished or are expected to cease or diminish.

It is clear from the evidence presented at the hearing that the Respondent initiated a cost and structure review. One of the outcomes of this process was that a decision was made that the Head of Product Marketing did not align with the future plans of the company.   It was also made clear that the basis for this was to facilitate growth plans. The role within the company was unique.

It is also clear from the evidence adduced that the Complainant only became aware of the decision to make his role redundant after the review process concluded. The evidence presented also indicates that the Complainant had a preference to remain in work and outlined various options to enable this.

In relation to more role advertised on LInkkedIn I find that the Complainant did not apply for or raise any queries with the Respondent in relation to this. I also find that there was insufficient evidence to confirm any direct or substantive link with the Complainant’s previous role

Based on the above conclusions I next proceeded to consider the Complainant’s claim of unfair dismissal in the context of a redundancy scenario.

Section 6 (1) of the Unfair Dismissals Act, 1977 states that:

“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 are substantial grounds justifying the dismissal.”

Section 4 (3) (c) of the Unfair Dismissals Act, 1977 further clarifies the situation in relation to redundancy by stating, inter alia, that:

“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 ….. the redundancy of the employee…”

Section 6 (7) of the Act states as follows:

“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, the Tribunal or the Circuit 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…”

On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. Arising from this, the burden of proof rests with the Respondent to establish, in the first place, that the dismissal was wholly connected to redundancy, and having done so, to justify the selection process whereby the employee in question was selected for redundancy.

I accept that the Respondent is entitled to restructure its business model in order to maintain its position within the specialist area that it operates.

There is a considerable amount of case law in relation to the reasonableness of the employer in relation to the fair and objective selection of employees for redundancy.   In Boucher v Irish Productivity Centre [1994 EL 205] the Tribunal enunciated the burden on an employer to: “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made.”

In the within case the proposed restructuring proposed by the Respondent would see the Complainant’s role removed and as the evidence presented clearly indicated that this was a stand-alone role within the management structure.

Having carefully listened to the evidence and the submissions of both parties I find that a genuine redundancy situation existed and that the Complainant’s role was being made redundant and I am satisfied that the termination of the Complainant’s employment resulted wholly from redundancy.

I find that the claim for unfair dismissal is not well founded.

Redundancy, Unfair selection