Complainant

Respondent

Anonymised Parties

Employee

Golf Club

Representatives

none 

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031780-001

23/10/2019

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

CA-00031780-002

23/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00031780-003

23/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00031780-004

23/10/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998, and has submitted that he was discriminated against by reason of his age, in victimising him, his conditions of employment and for discriminatory reasons (CA- 00031780-001);

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that he was unfairly selected for redundancy (CA-00031780-002);

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health and Welfare at Work Act, 2005 and has submitted that he was penalised for making a complaint under the aforementioned act (CA-0003178-003);

The Complainant is seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 and has submitted that he was penalised or threatened with penalisation by the Respondent for having made a protected disclosure   (CA-00031780-004).

The Complainant commenced employment with the Respondent on the 23rd  October 2000 in the role of a general porter/caretaker. The Complainant  was initially paid €169.50 gross per week (€133.59 net) for 15 hours per week.

The Complainant submitted that In September 2017 he complained to the committee by letter about the bullying that he believed had been occurring in the kitchen for over two years. Previously he  had complained to the General Manager (GM), but he felt this complaint had been ignored.

The Complainant  felt the bullying was escalating in the kitchen and he was concerned for his safety as well as the other workers in the kitchen. The Complainant  met with the committee and a number of  weeks later the bullying issue was resolved and the Complainant believed the GM was annoyed with him that he had gone to the committee.

In  or about June 2018 the GM  issued the Complainant  with a pre-disciplinary notice on the basis that he was not cleaning the locker room properly and not following management instructions.

The Complainant  asked the GM to withdraw the pre-disciplinary notice as he believed it was unjustified as he believed he cleaned the locker and showers rooms to a high standard each day.

However, the GM  refused to withdraw this notice and in or about  September 2018 the Complainant contacted the committee as he felt this pre-disciplinary notice was unfair. He  also advised the committee of two health and safety issues,  that he was concerned about and which he believed the GM had done nothing about. These two issue were in relation to a vacuum cleaner and the location of a power socket in the kitchen.

On or about the 14th of December the Complainant alleges he was involved in an altercation with another employee. The GM was not working that day so the Complainant  reported the alleged assault to An Garda Siochana that evening. The GM did not mention the matter to the Complainant when they next met but the Complainant believed the Gardai had contacted the GM directly. The Complainant also advised the Health and Safety Authority about the assault and they contacted the GM too.

On the 7th January 2019, the Complainant was informed that due to a downturn in business his working hours would be reduced from 27.5 hours to 15 hours per week.   However, the Complainant’s kitchen cleaning duties would now be performed by a kitchen porter who was employed in December 2019. The Complainant did not want to accept the reduced working hours and believed this reduction was in retaliation to the complaints he had made in relation to the assault and health and safety issues.

The GM told the Complainant, on the 13th March  2019,  there would be changes in the locker room and he was then informed by letter dated the 19th March 2019 of a notice  of redundancy. 

The Complainant attended a meeting  on the 25th of March with the GM and the Chairman of the Respondent Company.  The Complainant submitted there was no effort to discuss alternative roles and he believed that it was a forgone conclusion for the Respondent  that he was being made redundant.

The Complainant asked the amount of the redundancy but submitted he had no intention of accepting it as a redundancy payment. Further, it was asked if any other people were being made redundant but he was told that due to data protection they could not provide that information.

The Complainant informed the GM, on the 26th and on the 29th  March 2019 that he would not accept the redundancy payment. The Complainant maintains he did not verbally accept the redundancy package offered following the meeting of the 25th March 2019.

 The Complainant declined to attend another meeting on the 18th April 2019 and a formal notice of redundancy, dated the 23rd of April 2019, was sent to the Complainant. The letter also informed the Complainant he could appeal this decision within 7 days .

The Complainant appealed this decision by letter dated the 27th April 2019 advising the Honorary Secretary of the Respondent Company that he believed, inter alia, the redundancy was being forced upon him  and that the committee had not looked at alternative roles for him or offered him his existing roles in the evening.

The Appeal hearing was held on the 29th May 2019 by  with a  former committee member as the Appeal Officer, the Honorary Secretary as the notetaker and the Complainant attended with a family member.

The Complainant was informed of the outcome of his appeal by letter dated the  19th June 2019. The Appeal Officer accepted that the possibilities for applying for alternative roles had not been developed sufficiently  and recommended that the Respondent complete the Redundancy process in full and invite the Complainant to discuss proposed alternatives and sought the Complainant to engage constructively in this process.

The Complainant responded on the 28th June 2019 and reiterated that he did not accept the redundancy and he would welcome the opportunity to meet with the Respondent to discuss alternatives. Further, a payment of € 12,430.00  was lodged into the account of the Complainant without his agreement.

Correspondence continued between the parties in an attempt to organise a meeting to discuss alternative roles for the Complainant, however, the Complainant felt such a meeting with the GM and the Chairman would be of no benefit. Ultimately, the Complainant believed that steps were taken to manage him  out of his employment with the Respondent  first by removing his kitchen duties and then his locker room duties as these roles were still there but  carried out by different people. The Complainant submitted that their was a failure to conduct the redundancy process correctly and to manipulate him into accepting redundancy.

The Complaint, who was 65 year of age, when he commenced employment with the Respondent  submitted that he was selected for redundancy because of his age as he was the only employee selected for redundancy in 2019. Further, he was the only member of staff to be asked to have a medical assessment  which he passed. The Complainant is currently 85 years of age.

These Complaints were received by the Workplace Relations Commission on the 23rd October 2019

The Respondent outlined  the timeline in relation to the Complainant’s employment from the 2nd October 2000 until the 7th May 2019 as follows.

The Complainant was asked to attend a medical assessment in 2017 as at that  time, he was the only employee aged over 65 who had not had been assessed, and the Respondent wished to ensure that the demanding nature of his job which included lifting and climbing, would not put any strain on his health. The Complainant passed the assessment

On 7 January 2019 the Complainant met with the Respondent for a consultation meeting, at which point it was agreed that he would begin to work reduced hours due to a downturn in the business, which reduced hours would commence as of 10 January 2019. Around this time, the staff on casual contracts were  not rostered because of the downturn in the business.

On 21 February 2019, the GM emailed the Club Officers in relation to current costs which the Respondent was facing. In this exchange, the idea of making the Complainant redundant was mentioned, along with an estimate of the cost of the statutory redundancy pay to which the claimant would be entitled. It was greed that this redundancy could be pursued as long as the GM is happy that the new arrangement can maintain standards or even improve them. The Respondent submits that this clearly shows the cost-based analysis which was undertaken by the Respondent prior to notifying the Complainant of any potential redundancy.

On the 13 March 2019 the GM informed the Complainant that the Respondent was looking into restructuring, and that the early locker room cleaning role might be made redundant. The GM informed the Complainant that the locker room would be cleaned in the evening by the existing contract cleaners, engaged since 2009.

On 19 March 2019, the GM wrote to the Complainant confirming that his role was at risk of redundancy. The Claimant was invited to a further consultation meeting on the  25 March 2019.

The Complainant attended the meeting on 25 March 2019  with the Club Officers, accompanied by a family member. At the meeting, representatives of the Respondent informed the Complainant that a redundancy figure had not yet been calculated as there were still other avenues to be explored. A figure of €12,500 was provisionally agreed between the parties.

After this meeting had concluded, shortly after 2pm on the same date, the Complainant rang the GM on his personal mobile and agreed to the redundancy and asked him to bring the plan to the Committee meeting that evening. In the course of this hearing, the Adjudication Officer was shown a received call from an unnamed number on the aforementioned date and time.

On the  27 March 2019, the Complainant and GM discussed what should be done in relation to the 11 days annual leave still owing to the Claimant. It was agreed that the Claimant could take the annual leave if he wished, and he chose to do so the following week.

On 18 April 2019, the GM wrote to the Complainant confirming that a redundancy payment had been calculated at the meeting on 25 March 2019 and verbally accepted on that day. The GM invited the Complainant to a follow up meeting on the  23rd April 2019. Although the GM hand delivered this letter to the Complainant he refused to take it stating that he did not want to talk to the GM or listen to him. When the Complainant left the GM’s office, he did not take the letter with him.

On 23 April 2019, a follow up letter was hand delivered to the Complainant . He subsequently emailed the GM asking for a copy of the letter dated 18 April 2019 and then followed up by requesting certain amendments be made to the calculation of the redundancy pay.

On 27 April 2019, the Claimant wrote to the Respondent wishing to appeal the decision to make him redundant. In this letter, the Complainant put forward that the proposed redundancy was "forced" upon him and that any attempts he had made to suggest other roles were "shut down" at the meeting on the 25th  March 2019.

On the  29th  May 2019, the appeal hearing was conducted. The hearing was conducted by an an appeal officer along with a notetaker and the Complainant was accompanied by a family member. Minutes were taken at this meeting and  the Complainant subsequently submitted proposed amendments to these minutes.

The Complainant was informed of the outcome of his appeal on the 19th  June 2019. The Complainant responded to this letter on 28 June 2019, claiming that the GM had lied to the Respondent in saying that the Claimant had called him to accept the redundancy proposal on the  25 March. This letter was brought to the attention to the Management Committee of the Respondent by the GM on the 1st  July 2019. 

The Respondent submitted that the Complainant has accepted both the statutory redundancy lump sum payment paid by the Respondent (€11,593.80) and also the additional severance payment paid to the Claimant (€836.20) and the claimant's claim that there was not a valid redundancy and/or that he was not fairly selected for redundancy should not be allowed in those circumstances.

Further, without prejudice to the foregoing, the Respondent submitted that the redundancy of the Complainant was a valid redundancy and that the Respondent engaged in a proper and reasonable consultation process with the Complainant around the redundancy. There were a number of meetings with the Claimant during which the reasons for the redundancy were discussed and explained to him and at which he was afforded an opportunity to respond. In addition, he was offered, and took up, the opportunity to appeal the decision around the redundancy, and the appeal was heard by a club member who had no previous involvement in the earlier decision.

The Complainant was originally employed as a part-time porter with cleaning duties and worked in the kitchen area and external Club area. The Club engaged contract cleaners in 2009 to clean the locker room area, following the redundancy of the previous caddymasters. Changes occurred in early 2019 as regards cleaning the kitchen, as the kitchen staff were required to clean up as they worked and clean up before they left the kitchen in the evenings, for health and safety reasons following advice from external consultants, which resulted in savings in Club expenditure on cleaning and a reduction in the Complainant's hours.

In 2019 a decision was taken by the Club that the then-existing cleaning arrangements in the locker rooms (which were cleaned late in the evening and again in the early morning, resulting in a duplication and unnecessary cleaning) be implemented, with a view to cost-reduction. This in turn resulted in the redundancy of the Complainant's position.

There was no "pool" of employees from which "selection for redundancy" could occur. In addition, despite discussions with the Complainant, there was no alternative suitable work to which he could be assigned following the redundancy of his cleaning position.

The Respondent confirmed in the course of this hearing that the number of employees would be a maximum of 32. This would include 15 full time employees, part time employers and seasonal staff. 

In relation to the other matters highlighted by the Complainant in the course of this matter, the Respondent acknowledges that the Complainant made a complaint about bullying. However, the Respondent submitted that the GM dealt with his complaint at the time and denies he  ignored the Complainant’s concerns.

It is acknowledged that the Complainant did make a complaint about an alleged assault by another employee and An Garda Siochana did make contact with the GM in relation to this matter. The GM  spoke with both the Complainant and with the other employee. The Respondent  submitted there was a clear conflict of evidence between both parties as to what had happened, there was no corroborating evidence available and there had been no previous similar incident involving both or either party. In the circumstances the Respondent  felt it was not in a position to come to a definitive finding. However the Respondent  took steps to ensure that both parties felt safe. There was no further similar complaint or difficulty between the parties.

In relation to health and safety issues outlined by the Complainant, the Respondent submitted that the vacuum cleaner was serviced externally by the Club. No fault in the vacuum cleaner was found. The Club was advised that, where the two vacuum cleaners motors were running, the vacuum cleaner was loud but was below the decibel levels permitted and accordingly the Respondent was satisfied that the vacuum cleaner was safe.

Further, in relation to the socket in the kitchen, the Respondent submitted that all the  sockets in the kitchen, including the socket about which the complainant specifically mentioned were professionally installed to the required standard for sockets in kitchens. It is accepted that the Complainant had spoken to the GM about one particular socket and as a result of this conversation the GM  asked the Club's electrician company to examine this particular socket. An electrician attended, examined the socket and advised the Respondent that it was perfectly in order and it was a particular type of socket where screws closed on the pins, making the socket watertight.

In relation to the claim alleging penalisation pursuant to the Protected Disclosures Act 2014.The Respondent submitted that  that the "relevant wrongdoing" within the meaning of the 2014 Act, constitutes some or all of the matters referred to above and relied upon by the Complainant for the purposes of the allegation of penalisation under the Safety, Health and Welfare at Work Act 2005 and in that regard  the Respondent relies on the aforementioned responses.

More fundamentally, the Respondent submits that a claim for penalisation under the 2014 Act cannot validly be made in circumstances where the Complainant has never raised either the issue of a "protected disclosure" under the 2014 Act, or penalisation, while he was employed, during the redundancy consultation process or at the appeal hearing.

The Respondent denies that any of the issues around health and safety or "protected disclosure" as alleged, had ever been considered by the Respondent or formed any part of the decision of the Respondent that the Complainant's position was to be made redundant.

It is the Respondent’s position that that the Complainant is not entitled to succeed in any of the claims made in the course of this matter.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

Complaint CA-00031780-001

On the 7th January 2019 the Respondent reduced  the complainant’s working hours from 27.5 hours to 15 hours per week. The Complainant alleges that the Respondent when making the decision to reduce his hours, did so based on his age along with other grounds of discrimination, and in doing so, treated him less favourably than other employee who were all younger than the Complainant. Further, previously in 2017 the Complainant was the only employee  asked to attend for a medical assessment which he ultimately passed.

The Complainant had a different type of contract to many of the other employees who were on casual contracts. The complainant’s contract of employment states, inter alia, that “the Respondent reserves the right to lay off from work or reduce working hours where, through circumstances, beyond its control, it is unable to maintain you in employment or maintain you in full employment” 

Further, in relation to termination “Your employment may be terminated without notice for serious misconduct or failure to carry out such duties as maybe assigned to you by the Respondent from time to time”

The Complainant’s working hours had  never been reduced before and the only explanation given to the Complainant by the Respondent in relation to the reduction of working hours was due to a downturn in business. No other employee’s with the Respondent were subject to the same treatment.

The Complainant withdrew the complaint in relation to discrimination against him in dismissing him for discriminatory reasons. The Complainant submitted he had been discriminated against in relation to age, victimisation, conditions of employment, opposing discrimination and harassment.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their

proper context. It also indicates that in considering if the burden of proof shifts the court should

consider any evidence adduced by the Respondent ..”.

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court

commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the Complainant is

merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the

conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn

from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

In Southern Health Board v. Mitchell Labour Court AEE/99/E, the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.”

The Labour Court went on to say that: -

“It is only if those primary facts are regarded…as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

In establishing a prima facie case of direct discrimination, the complainant must, therefore, establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the respondent, which could reasonably give rise to the presumption that less favourable treatment of the complainant had occurred.

The first ground of discrimination alleged by the Complainant is  under the protected ground of age is provided for at Section 6 of the Act: 

Section 6(1) of the Acts provides, inter alia, that discrimination shall be taken to occur where:

“(a) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned, “

Section 6(2)(f) of the Acts provides that:

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ....

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

I am satisfied, on the balance of probabilities, based on the complainant’s own evidence, together with the submissions filed and the documents tendered into evidence, that the complainant has established a prima facie case in raising an inference of discrimination in relation to age. The Complainant has discharged the initial probative burden.

I am further satisfied that the Complainant  was treated less favourably that his other colleagues in relation to the reduction of his hours and being the only employee asked to attend for a medical assessment.  

Although the Respondent indicated they were experiencing financial difficulties, the Respondent did not adduce any evidence to be able to rely on the provisions of section 34 of the EEA 1998-2011. Further, no evidence was adduced by the Respondent  to show that the Respondent’s decision was objectively and reasonably justified by any aim, legitimate or otherwise, or that the means of achieving that aim was appropriate and necessary. The respondent has failed to prove that there was no infringement of the principle of equal treatment.

Accordingly, the Complainant has  established a prima facie case of direct discrimination by reason of his age.

In relation to the complaint  regarding victimisation, Section 74(2)provides  victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

However, in relation to this specific ground of victimisation and upon considering the evidence adduced by both the Complainant and the Respondent and the provisions of Section 74(2), I find, on the balance of probabilities, that there was no specific treatment by the respondent, which could reasonably give rise to the presumption that less favourable treatment of the complainant had occurred. Therefore,  a prima facie case of direct discrimination has not been established in this instance by the complainant.

In relation to the complaint regarding harassment,  section 14A(7) of the Acts provide any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

In relation to this specific ground of harassment and upon considering the evidence adduced by both the Complainant and the Respondent and the provisions of Section 74(2), I find, on the balance of probabilities, that there was no specific treatment by the respondent, which could reasonably give rise to the presumption that less favourable treatment of the complainant had occurred. Therefore, a prima facie case of direct discrimination has not been established in this instance by the complainant.

In relation to the complaints regarding conditions of employment and dismissing the Complainant for opposing discrimination,  I find, on the balance of probabilities, that there was no specific treatment by the respondent, which could reasonably give rise to the presumption that less favourable treatment of the complainant had occurred. Therefore, a prima facie case of direct discrimination has not been established in this instance by the complainant. 

Section 82(4) of the Employment Equality Act 1998, as amended makes the following provision for compensation where discrimination has occurred:

‘(4) The maximum amount which may be ordered by the by way of compensation under subsection (1)(c ) or (1)(f ) shall be —

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned,’

The Complainant’s evidence was that he very distressed and upset that he had been singled out and discriminated against on the grounds of his age and other discriminatory grounds. He enjoyed his work and was fit, healthy and perfectly capable of continuing in his role. The Complainant was at a direct loss of 12.5 hours pay per week over a 22-week period from 10th  January 2019 to the  18th June  2019 totalling the sum of €5,593.50. In addition, he contends that he has an entitlement to compensation for the ongoing distress and upset suffered over a period of seven months.

In Citibank v Ntoko [2004] ILR 116, the Labour Court stated: 

“in measuring the appropriate quantum of compensation, regard must be had to all the effects which flowed from the discrimination which occurred, including compensation over and above economic loss which was awarded for the complainant having been deprived of “his fundamental right to equal treatment and freedom from racial prejudice.”

Accordingly, in all of the circumstances I find that the appropriate award is €10,000.00

Complaint CA-00031780-002

The Complainant submitted that he was unfairly selected for redundancy where no genuine redundancy situation existed.

The statutory definition of redundancy is located in the Redundancy Payments Act 1967, Section 7 (2) as amended which provides that:

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 lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Under Section 6(3) of the 1977 Act there may be a finding of unfair selection for redundancy where an employee is dismissed but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have 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.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act  1977 which provides

“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”

Under Section 6(4) redundancy is a substantial ground and once the redundancy is established the employer has discharged the onus. However, an employee may meet a redundancy defence by claiming the unfair selection under Section 6 (3).

In Williams –v- Comp Air (1982) 1 ICR 156, Browne-Wilkinson J in considering the issue of fair selection, identified the following as generally accepted principles governing how reasonable employers will typically act:

1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

In Boucher –v- Irish Productivity Centre (1994) ELR 2005, this was an illustration of an unfair selection process. In this case, no agreement was reached as to the method of selection for redundancy. The selection process was carried out by without any consultation or interviews In describing this selection procedure as unfair and holding that the claimants has been unfairly dismissed the Employment Appeals Tribunal emphasized that those in the group likely to be dismissed should be made aware that such assessment is being made and they should be given an opportunity to give their views which should be considered.

InMulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), in respect of redundancy the tribunal stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases thate may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

In JVC Europe v Panasi (2011) IEHC 279, Charleton J stated:

“ It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. 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.”

“The comment on the nature of redundancy made inSt. Leger v. Frontline Distributors Ireland Ltd., [1995] E.L.R. 160 at 161 to 162 by Dermot MacCarthy S.C., as chairman of the Employment Appeals Tribunal, is apposite:-

“Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: ‘one or more reasons not related to the individual workers concerned'.

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 needs 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.”

Justice Charleton also remarks that “It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go, should be examined”.

He also comments

“As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision.

As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.

In the circumstances of this case, I accept on behalf of the Respondent Company that from a business and operational point of view and in light of the economic downturn that there was some evidence of a genuine redundancy situation. However, this does not absolve the Respondent from affording the Complainant fair procedures in relation to consultations or exploring alternatives.

In that respect, it was noted that there was a meeting on the 7th January 2016 and the 2nd March 2017 prior to the meeting of the 13th July 2016 wherein the Complainant was informed he was being made redundant. These two earlier meetings cannot be regarded as an adequate part of the consultation process. On the balance of probabilities and in consideration of the  evidence presented at the hearing and noting the respective position of the parties I have  concluded that there was no adequate consultation process and the onus was on the Respondent Company to carry out such a process. I have further noted  the Respondent Company did not provide any or adequate evidence in relation to any redundancy procedures or with respect to any criteria or matrix for selection for redundancy. Notably, no other employee was selected for or made redundant

In the circumstances of this complaint, I have concluded that the claimant was dismissed due to redundancy but there were no grounds adduced by the Respondent justifying the dismissal and therefore the Complainant was unfairly selected for redundancy. Accordingly, I find that the Complainant is entitled to the sum of €12,430.00 which is equivalent to the Complainant’s statutory redundancy (€11,593.80) and an additional severance payment (€836.20). 

Complaint CA-00031780-003

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides, inter alia:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work,

reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation

against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

In relation to this complaint, the Complainant stated he had been penalised, with effectively dismissal, as he had disclosed issues in relation to health and safety matters and an alleged assault. The health and safety matters has been in relation to a faulty vacuum cleaner and the location of an electrical outlet. The alleged assault had occurred in or about the 14th February 2018. The Complainant had reported this alleged assault to An Garda Siochana and the Health and Safety authority.

In the circumstances of this case and upon consideration of the evidence heard in relation to the aforementioned matters, I find that there was noact or omission by the Respondent that affected the Complainant to his or her detriment with respect to any of the terms or conditions of his employment. I accept that the Respondent did not penalise the Complainant in respect of any of the relevant parameters of Section 27 (3) of the Safety, Health and Welfare at Work Act, 2005.

Further, I accept the Respondents submissions that any of the alleged issues around health and safety  had ever been considered by the Respondent or formed any part of the decision of the Respondent to make the  Complainant's position redundant.

In consideration of Section 27 (5) of the relevant act, I have already made a finding under the Unfair Dismissals Act (CA-00031780-002)

Accordingly, this Complaint is not well founded.

Complaint CA-00031780-004

Section 5 of the Protected Disclosures Act 1994 provides:

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.              

(2) For the purposes of this Act information is “relevant information” if—

(a)  in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

               (b)  it came to the attention of the worker in connection with the worker’s employment.

 (3) The following matters are relevant wrongdoings for the purposes of this Act—

(a)  that an offence has been, is being or is likely to be committed,                                

 (b)  that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

 (c)  that a miscarriage of justice has occurred, is occurring or is likely to occur,       

 (d)  that the health or safety of any individual has been, is being or is likely to be endangered

 (e)  that the environment has been, is being or is likely to be damaged,                        

 (f)  that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,                                  

(g)  that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or                                               

 (h)  that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory. the purposes of subsection (3) it is immaterial whether a relevant wrongdoing

(5)  A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(6)  A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7)  The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8)  In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Section 12 of the of the Protected Disclosures Act (1994) provides:

(1)    An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalization against an employee, for having made a protected disclosure.

(2)    Subsection (1) does not apply to the dismissal of an employee to whom Section 6 (2)(ba) of the Unfair Dismissals Act 1977 applies

In relation to this complaint, although the Respondents employee handbook does not have a section related to the Protected Disclosure Act, 2014, the Complainant had reported two matters to the Respondent, namely in relation to the aforementioned bullying in 2017 and the alleged assault on the 14th February 2018.

The Complainant submitted that the issue of bullying is covered by Section 5 (3) (b) and (d). In particular it is noted that the Complainant informed the Health and Safety Authority by phone about the allegations of bullying and they in turn contacted the GM. The Complainant submitted that in response to his actions which he is categorizing as a protected disclosure he was penalized by having his working hours reduced and ultimately being made redundant. 

In  Everett Financial Management Ltd v Murrell EAT/552/02, 18 December 2002. In this case the respondent was employed as an equities dealer by the appellant. He claimed that he had been constructively dismissed by reason of his having made a protected disclosure. He asserted that he had made a disclosure in 2000 when he and 18 of his colleagues became concerned about a particular practice that they were required to carry out and signed a petition seeking assurances from the appellant’s directors that they were not engaged in an activity that was unlawful or that could be construed as unlawful. On appeal the English EAT agreed held that the petition did not disclose any information. It concluded that simply raising and expressing concerns and seeking assurances that there had not been a breach of a legal obligation did not amount to a protected disclosure under the Act.

In Eiger Securities LLP v Korshunova [2017] ICR 561 illustrates the fact the Adjudication Officer must be satisfied that the information purportedly amounting to a protected disclosure actually discloses an alleged wrongdoing. In that decision the EAT said: “The identification of the obligation does not have to be detailed or precise, but it must be more than a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the ET failed to decide whether and if so what legal obligation the claimant believed to have been breached. The decision of the ET as to the nature of the legal obligation the claimant believed to have been breached is a necessary precursor to the decision as to the reasonableness of the claimant’s belief that a legal obligation has not been complied with”.  

Upon consideration of the above, I find that the Complainant had raised and expressed concerns in relation to the aforementioned matters but they did not amount to a protected disclosure.

Further, is noted that In consideration of Section 12 (2) of the relevant act, I have already made a finding under the Unfair Dismissals Act (CA-00031780-002)

Accordingly, this complaint is not well founded.

I find that the Complaint (CA-00031780-001) made pursuant to Section 77 of the Employment Equality Act, 1988, succeeds and find that the Respondent is to pay the Complainant the sum of €10,000.00

I find that the Complaint (CA-0003178-002) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, succeeds and find that the  Complainant is entitled  to the sum of €12,430.00.

I find that the Complaint (CA-0003178-003) made pursuant to Section 28 of the Safety, Health & Welfare at Work Act, 2005 is not well founded.

I find that the Complaint (CA-0003178-004) made pursuant to Schedule 2  of the  Protected Disclosures  Act, 2014 is not well founded.

Discrimination Redundancy Safety Disclosure