FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : TANNERON LIMITED (REPRESENTED BY ALAN LEDWITH, B.L., INSTRUCTED BY, RONAN, DALY, JERMYN, SOLICITORS) - AND - GERARD CONOLIN (REPRESENTED BY TIERNAN LOWEY, B.L., INSTRUCTED BY, MICHAEL HOULIHAN AND PARTNERS, SOLICITORS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision NoADJ-00018534 Mr. Conolin, ‘the Complainant’, was employed by Tanneron Ltd., ‘the Respondent’, as a Principal Consultant offering consultancy to Pharma and Biotech companies on quality control, from January 2008 to July 2018. The Respondent contends that the Complainant was made redundant. The Complainant contends that he was unfairly dismissed. The Complainant made a complaint under the Acts to the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, found that there was a genuine redundancy and that the Complainant had not been unfairly dismissed. The Complainant appealed to this Court. SUMMARY OF RESPONDENT ARGUMENTS: The company had cumulative losses from June to December 2017 in the region of €442,000, from January to April 2018 of €217,000 and cumulative losses to end November 2018 of €733,000. There were various measures taken to deal with the situation including non-payment of bonuses, reduction in telephone costs, cancellation of an IT service contract, reduction of office space through closure of Galway office and closure of the Respondent’s office in India. However, 93% of the costs of the business are employment costs. The Respondent was kept afloat by a series of significant cash injections from its France based parent company, EFESO. Survivability was paramount and there was no alternative but to have redundancies. Three consultancy positions had to be made redundant and in 2018 head count reduced from 22 to 12. The Complainant was paid €26,137.34 in accordance with his rights under the Redundancy Payments Act and other statutory entitlements. BSM USA and BSM India are wholly owned subsidiaries of Tanneron Ltd., while each is incorporated in their own jurisdiction, the companies have always operated as one entity. For that reason, the consolidated accounts are of importance. It is important to note that figures in the Respondent’s accounts that appear to show profits of €646,536 for 2017, €348,711 for 2018 and €324,761 for 2019 are, in fact, balance sheet figures that show the total retained earnings of the Respondent from its inception. The actual profit and loss figures for the Respondent company for these years were +€5217 in 2017, -€297,825 in 2018 and -€23,950 in 2019. In consolidated accounts for the three entities, the losses are even greater: -€51,000 in 2017, -€706,000 in 2018 and -€57,000 in 2018. With the exception of November, every month in 2018 was loss making. Mr. Tom Reynolds is CEO of the Respondent. At the request of the parent company, EFESO, when it acquired the Respondent in 2015, he provides his services to the Respondent through a company called Greyslate Ltd, of which he is a director and shareholder. He acted at all times with the full authority of the Respondent company. Reference has been made by the Complainant to the remuneration paid to Greyslate Ltd. Mr. Reynolds was subject to ‘earn out’ arrangements, payable upon the achievement of certain targets. Accruals were made in the accounts for these sums. The figure of €314,558 paid to Greyslate Ltd. includes payment for the first ‘earn out’ of €145,000 that related back to the sale of the company in 2015. Mr. Reynolds had no say in this payment that was owed to his company by virtue of contractual arrangements. The second ‘earn out’ was not paid and was reversed in the accounts. Bank statements and accounts are provided to the Court. All consultants, with the exception of three senior managers, across the three BSM entities were considered for redundancy. BSM India’s operations were ceased and the sole employee there left the business. Apart from the 3 consultants made redundant, a further 6 left the business, leaving a total of 12 employed by the Respondent. On 28 March 2018, Mr. Reynolds wrote to all consultants to advise them of the fall-off in business and a request that all consultants seek to generate more business. On 23 April 2018, he wrote again regarding the challenges and the fact that March was the ‘5thloss making month in a row’, in which mail he advised of the closure of the India office. On 16 May 2018, he advised of possible redundancies. On 18 May 2018, a presentation was given to all who might be affected by redundancies. They were advised that selection criteria based on fee income and sales over the previous 12 months were being considered to help minimise the risk of future redundancies. The option of ‘last in, first out’ was discounted as one of those with the potential to be made redundant was based in the UK, where this is deemed to amount to indirect age discrimination. There was no agreed system for selection for redundancy in place and the Respondent was entitled to apply a reasonable and fair process best suited to its business. Alternative possible opportunities elsewhere within the EFESO group were advised to those affected. The Complainant raised a concern regarding the selection criteria and Mr. Reynolds met with him and his representative on a number of occasions. On the basis of the selection criteria, the Complainant was made redundant by letter dated 15 June 2018. He was paid statutory redundancy of €13,236 plus six weeks’ notice and outstanding annual leave, totalling €26,564. The Complainant’s claim that he was targeted regarding the allocation of work is absolutely refuted. For him to have been targeted, management would have had to be aware of redundancies 12 months in advance of when they occurred. The Complainant appealed the decision. His appeal was considered by an EFESO Vice-President in Belgium and the decision was upheld. The redundancy was performed in line with the requirements of impersonality and change. The Respondent relies on the decision inBoucher v. Irish Productivity Centre 1994 EAT ELR205,that in situations where no previous process was applied, the requirement is to apply criteria fairly and uniformly. Although there is no general right to a hearing prior to dismissal, the Complainant had the benefit of a lengthy consultation process, including the right to be represented at meetings, seeHickey v. Eastern Health Board 1991 SC9ILT DIG24. The Respondent acted reasonably. The question for the Court is not whether it would have made the selection but, rather, if a reasonable employer could have made the selection, seeBritish Aerospace Ltd v. Green (1995) IRLR 433and alsoWilliams v. Compair Maxam Ltd (19820 IRLR82.In the case ofMary Hyland v Templevile Developments Ltd UD 1515/2019,it was determined that it was for the employer to decide on reasonable criteria for redundancy unless there was an agreed procedure already in place. The dismissal was consistent with s. 6(4) of the Acts and with s. 7(2) of the Redundancy Payments Act 1967. The survival of the company required redundancies and the Respondent complied with all necessary requirements by consulting with employees and applying a fair and transparent selection process and a right of appeal. There is no legal barrier to a selection for redundancy being based on performance, provided it is impersonal and objective. In this case, the criteria used were related to the continuing viability of the Respondent company. They were impersonal and no individual was identified in advance. Indeed, Mr. Reynolds was surprised to find that, when the criteria were applied, the Complainant was bottom of the list for both fees and sales in the previous 12 months’ period. SUMMARY OF COMPLAINANT ARGUMENTS: There is an absence of documentation to support many of the Respondent’s assertions. There was not a genuine redundancy situation, the selection process was grossly unfair and the procedure leading to the dismissal was a sham where the pre-determined selection process meant that the Complainant could do nothing to overturn his selection. In order to prove that the dismissal was fair, the Respondent has to show that it arose wholly or mainly due to redundancy, that the selection process was fair and that the procedures applied were fair. None of these conditions are met. The Respondent admitted at the WRC hearing that there was no consideration of lay off, salary reductions or voluntary severance and, therefore, failed to consider all alternatives to redundancy. The AO observed regarding the selection process that ‘I am of the view that a more transparent and comprehensive matrix could have been put in place by the Respondent’. The AO failed to make any finding regarding the procedural fairness of the dismissal. For approximately 8-10 months no work was assigned to the Complainant. After 10.5 years of loyal and diligent service during which the Complainant had an unblemished record and was never the subject of a negative performance appraisal, the Complainant had no reason to believe that his performance would be used against him to justify dismissal, allegedly on redundancy grounds. If the period under consideration had widened to 2 years, the outcome would have been different. If account had been taken of work in the pipeline, the outcome would also have been different. There was no true consultation with the Complainant. The process following the email of 16 May 2018 was an information process and not a consultative one. There is no documentary evidence regarding the choice of selection criteria and at the meetings with the Complainant it was made clear that there was no intention to interfere with the selection criteria. At the Adjudication hearing, Mr. Reynolds confirmed that the Respondent had received legal advice to use a matrix of criteria in selection for redundancy, yet he chose to look only at the previous 12 months and made decisions based on sales figures and fee income. He seemed to confirm that the criteria were not discussed at board level. As the criteria relate directly to the employee’s personal performance, it cannot be asserted legitimately that the basis of the decision was impersonal as required, seeJVC Europe v. Poninsi, (2012)E.L.R. 70. As noted inSt. Ledger v. Frontline Distributors Ltd UD 56/1994,‘Impersonality runs through the five definitions of redundancy in the act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose their job’., see alsoMcGeehan v. Park Developments UD 950/2008.As Charleton J. noted in ‘Poninsi’ ‘Redundancy cannot, therefore, be used as a cloak for the weeding out of those employees who are regarded as less competent than others.’ InRichardson v H. Williams and Co. Ltd UD 177/86,the EAT set out the basic elements required in a dismissal based on poor performance i.e. that an employee must be given a justified warning that his job is in jeopardy, he must be given a reasonable time to effect improvement and he must be given a reasonable work situation within which to concentrate on such defects. The criteria used are not objective. It was readily apparent to the Respondent whose performance in the months concerned would be the first to go. Further, in choosing to make a decision based on performance, the Respondent drove a horse and cart through the Complainant’s right to be advised of any alleged under performance and to be provided with an opportunity to address any such issues. He had a contractual right to annual performance appraisals. The Complainant was never given the right to test the performance criteria used in the selection and the top earners were managers who assigned the work, including Mr. Reynolds, who is not an employee of the Respondent. The Complainant took annual leave, to which he was entitled and this was used against him. The only attempt to come up with suitable alternatives for the Complainant was to identify positions outside Ireland, which required language competences that the Respondent knew would make them unsuitable for him. Mr. Reynolds did not have the authority to dismiss the Complainant. He is not an employee of the Respondent. InGrenet v. Electronic Arts Ireland Ltd (2018) IEHC 786,the High Court granted an interlocutory injunction because the Defendant had failed to show that a Mr. Pompei who was based with a parent company in the US, had the authority to dismiss the Plaintiff. In accordance with s.6 of the Acts for a dismissal by reason of redundancy to be fair, an employer must apply an objective basis for selection. In this case, the process was unfair. The test of fairness noted inBoucher v. Irish Productivity Centre R492/1992was not met, nor was there adequate consultations with him, as perO’ Kelly v. Exsil Ltd UD 1086/2007 andFennel v. Resource Facilities Ltd., UD 57/2009. The EAT emphasised inSheehan and O’ Brien v. Vintners Federation of Ireland Ltd., (2009) 20 ELR 155,the importance of engaging with employees in a reasonable manner and, as part of this process, of consideration of alternatives to dismissal. Accounts show that the Respondent had a profit in 2017 of €646,536 and profit in 2018 of €348,711. In the 2017/18 accounts, ‘Grey Slate Ltd’, the company through which the supposed CEO of Tanneron provides his services, was paid €478,882. No evidence has been provided of any attempt to reduce this amount. Reference is made to the closure of the India office in 2018 but the 2019 accounts refer to BSN India PVT, the relevant company, as a subsidiary of Tanneron. No indication is provided by the Respondent of how alleged 93% of costs being employee costs is calculated. The alleged reduction in numbers from 22 to 12 is misleading. This includes independent contractors. In 2015/16 there were 12 contractors, reduced to 11 in 2017, (when the status of Mr. Reynolds changed) down to 8 in 2018. The Respondent claims to have applied selection criteria to alleged 18 employees but it did not have 18 employees as this figure includes 6 in a US subsidiary and Mr. Reynolds. The Respondent is a separate legal entity yet the accounts of three companies, two of whom were not the Complainant’s employer, were used to justify redundancy and staff in those companies were taken into account in selecting for redundancy. Yet, it appears that the parent company, EFESO, for some reason, were not included in this consideration. The accounts for this company have not been provided. The Complainant never consented to have his performance measured against that of staff employed in different companies. It is not true to say that all consultants were considered for redundancy. Three consultants who are managers were excluded from consideration. WITNESS EVIDENCE: Mr. Cathal Melia: Mr. Melia was called as a witness by the Respondent. He is a Chartered Accountant and audited the Respondent company’s accounts. The witness said that he audited the Respondent’s statutory accounts. The witness said that he understood the Respondent company to be a wholly owned subsidiary of EFESO and that he understood BSM USA and BSM India to be subsidiaries of the Respondent company. He confirmed that his familiarity was with the Irish company’s accounts. The witness confirmed the dramatic fall in turnover for the Respondent in 2017 and 2018. He noted that the Respondent would have run out of cash except for the fact that it received cash injections from EFESO, without which the company would not have been sustainable. The witness confirmed that the figures shown as profits in the accounts were total retained earnings and not trading profits for the years in question. The witness confirmed the figures for the trading performance of the Respondent company in the years in question, (see as set out above). The witness confirmed that there was an agreed arrangement for payments to Greyslate Ltd. and noted that a second pay out provided for had been reversed. The witness was not familiar with the EFESO accounts. Under cross examination, the witness confirmed that he did not prepare accounts for the US and India subsidiaries but noted that he would have had sight of them and could confirm the degree of inter co-operation. He could not confirm the scale of losses shown for the three companies together. The witness said that it was not at all unusual for him not to rely on EFESO accounts as the Irish company is a separate financial entity. The witness stated that he had no involvement in the criteria used in the selection for redundancy. The witness was not aware if there were any efforts by the Respondent to raise funds from a bank, such as an overdraft. The witness had not seen the contract with Greyslate Ltd and he acknowledged that he was reliant on what Mr. Reynolds had told him about it. In response to questioning from the Court, the witness stated that he was satisfied that the Respondent’s accounts were a true and fair view of the Respondent’s financial situation. Mr. Tom Reynolds: Mr. Reynolds is Managing Director of the Respondent company and a Vice-President of the parent company, EFESO. The witness said that EFESO owned 100% of the Respondent company and that BSM India and BSM USA are wholly owned subsidiaries of the Respondent. The witness said that in June 2017 there was a dramatic fall off in business, from which the company has never fully recovered. The company provides consultancy on quality assurance to pharma and biotech companies, many of whom have taken this function ‘in house’, as a result of which the company has been pushed to a niche market. The witness said that 2018 was a scary time and that it was necessary to look at all costs and to reduce IT support and office costs, to close the India office and withhold bonuses. The Respondent wanted to see if the dip was temporary but formed the opinion that it was a permanent problem that would necessitate job reductions. The witness said that without cash injections from EFESO the business would have gone under. The witness said that short time working was not an option as the work is project work primarily on the client’s site for weeks at a time. The work required on site analysis of data, meeting the relevant people on site and inter- action with the project team. Some projects could last up to 6 months and two thirds of that time would require the presence of the consultant on site. The witness said that redundancies were an essential part of the solution as more than 90% of costs were labour costs. The witness said that the decision to have redundancies was made by him and that he felt that three redundancies would protect against the threat of future redundancies. The process had generated some natural attrition and numbers had gone down from 22 to 12 in the three companies as people left for other jobs. In the consultation process, the witness said that he had been open to all ideas. However, he wanted a process that was both empirical and impersonal. He felt that a matrix of considerations would not have worked as there were no issues with any consultants regarding attendance or discipline. The witness said that the Respondent did not have a policy for redundancy selection. A worker had parted previously on agreed terms, but it was not a redundancy situation. The witness said that the Complainant had raised concerns regarding the selection criteria and had been asked if he had alternatives to offer but he had never put any forward. The witness described how the Complainant’s representative had objected to the selection criteria at a meeting on 6 June 2018 and how a further meeting on 18 June 2018 had closed the process. The table used for the selection of the 3 individuals to be made redundant had shown the Complainant at the bottom of the list for both sales and fee income in the previous 12 months. The witness said that the Complainant exercised his right to appeal. The appeal was heard by Mr. Bruno Michaels a Vice-President of EFESO in Belgium. The appeal had not been upheld. The witness referred to a document provided to the Court that stated he had full authority to make decisions, as MD, for the Respondent company. The vehicle through which the witness acted as MD was through a separate company. This was what EFESO wanted when it took over the Respondent. The witness presumed that this made it easier for EFESO to sever the relationship with him, if necessary. He explained that part of the share sale involved two bonus payments to be made to Greyslate Ltd. upon achievement of certain targets. One had been paid, the other had not. Under cross examination, the witness confirmed that he was employed by Greyslate Ltd and that the contract of sale of the Respondent company was between that company and EFESO in 2015. The witness said that, operationally, the three companies, BSM India, BSM USA and Tanneron were treated as one for purposes of earnings, including payments of bonuses to consultants. The Respondent company operated separately for legal reasons but for profit and loss purposes the three were treated as one. Generally, any pay increases awarded were awarded in all three companies. There were some differences in conditions to allow for local circumstances, such as forper diempayments but most conditions were identical across the companies. The witness reiterated that all consultants across the three companies, with the exception of three managers, were considered for redundancy. In response to a statement that the selection criteria were never going to change, the witness repeated that the Complainant had never put forward any alternatives. The witness accepted that the Complainant had an entitlement to annual appraisals and that these did not always take place at the exact time when they were due. The witness accepted that these appraisals had never expressed any negatives regarding the Complainant, as far as he could recall. The witness accepted that work ‘in the pipeline’ had not been considered in the criteria used for selection and said that if it had been the belief of management that the difficulties were temporary, this would have been a relevant factor for consideration but the view was that the difficulties would be ongoing and this had since proved to be the case. He acknowledged that the Complainant’s experience would have been valuable going forward but noted that sales and fee figures were the biggest determinant of sustainability. The witness agreed that the terms of an email to staff regarding the departure of the consultant in India from the employment, which stressed that there could be no reflection on that consultant’s work performance, had not been repeated in the case of the Complainant. The witness stated that there was no document trail to show how the selection criteria were chosen. The witness said that making redundancies in order to avoid future redundancies was, in his view, the same thing as making redundancies to sustain the business. The witness explained that there was a fixed basis for sales attribution, which took account of relevant factors, including whether business had been generated as a follow on from previous contracts. With regard to a suggestion that pay cuts might have been considered, the witness said that the scale of cuts that would have been required meant that was not a feasible option. The witness said that alternatives within EFESO were notified to the Complainant but acknowledged that his family circumstances could have made these unfeasible. The witness explained that the figure of three redundancies had been arrived at having considered the number of days’ work that was projected. The witness denied that he knew in advance who would have finished bottom of the leader-board for fees and sales in the previous 12 months. He stated that the figures had been compiled after 18 May 2018 and before he met the Complainant on 5 June 2018. The witness accepted that reference had been made at the meeting regarding the Complainant’s annual leave and noted that staff had been asked to keep their leave flexible to allow for availability if work came in. The witness noted, in any event, the Complainant did not take the leave that he had proposed to take. When reference was made to a specific contract, the witness noted that the Complainant had not worked on that particular contract. Proceedings adjourned at this point. Upon resumption, the witness denied that he had been advised to use a matrix in selecting for redundancy and said that he had been advised that this was the approach sometimes taken by companies. The witness reiterated that the selection criteria were fair, in his opinion, and noted that no alternatives had been suggested by the Complainant. The witness said that he did not determine if the Complainant was suited to any of the alternative posts that were notified to him. The witness noted that the Complainant had not been available to work on a new project because he was working on an existing one, which, the witness noted, only involved invoices for about 8 days. In response to questions from the Court, the witness said that he could not recall if a longer ‘look back’ period had been considered but that some of the people concerned had only commenced employment in that time. He described the process as one of arithmetic, taking account of sales and income. On re-direct questioning, the witness said that the Complainant had not put forward alternative possible employment suggestions. Dr Andrew Harte: Dr Harte was one of three members of the Respondent’s senior management team at the relevant time. The witness outlined that he had been aware of the company’s financial difficulties and had been part of the discussion about solutions. The management team had concluded that numbers would have to be reduced and, once the criteria for selection had been decided, he pulled the data on sales and income and ranked the consultants. The witness described how the Resource Planner was used to match consultants to contracts, taking account of availability, location and skills. The witness denied that the Complainant was available at all times. He described how the Respondent managed to secure a contract for 84 days and how he wanted to assign the Complainant, but the Complainant was unavailable and had indicated his unavailability up to May 2018. The Complainant was working on a project based in France since November 2017. The contract was for only 8 days, for which 6 had been billed by March 2018. While the Respondent recognised the need for some extra non billable days’ work on the project, including recognition of the fact that the project was through the French language, the witness expected that the Complainant would have been available for the new project. Instead, the Complainant had added 20+ days for his current project. The witness checked with the relevant manager if any additional days had been sold but had been told that they had not. The witness spoke to the Complainant, who told him that ‘up to now’ he had not really taken the Resource Planner seriously as in earlier days it had often been over-written. The witness clarified that the extra days on the project did not exist. The Complainant then replaced these days with annual leave days. Subsequently, he removed those days and put back the days for his existing project. There was no new business on that project. As a consequence, the Complainant could not be assigned to any new work. The witness was ‘panicked’ as he needed to source another consultant quickly. The witness said that he thought that this sequence was unusual but had learned subsequently that the Complainant had set up his own consultancy business, that was active in 2018, so he now believed that the Complainant was otherwise occupied. When asked about alternatives to redundancy, the witness said that, initially, the company had hoped to ‘weather the storm’ but, after 10 months of drops in business and looking at the pipeline, there was no end in sight. Alternatives such as lay off and/or short time and/or pay cuts would have resulted in consultants leaving the business as the economy was not in recession. Under cross examination, the witness said that he had not prepared the presentation to staff but he was aware of the contents. The witness could not remember who had come up with the performance criteria. He said that the management team was keen to minimise redundancies. The witness accepted that none of the three people had management qualifications. He noted that he had no management qualification but had worked in management for some time. He accepted that his expertise was commercial. The witness said that legal advice had been obtained. He stated that this advice was not that a matrix should be used in selection for redundancy but that it was brought to attention that some other companies used such a matrix. He stated that the team wanted to be objective and impartial. The witness denied that he knew who would be identified and noted that his own cousin had been identified for redundancy using the criteria agreed. The witness accepted the obligation to monitor performance but drew a distinction with performance in the relevant role and commercial performance. He denied that he would have known the ranking with the selection criteria and noted that everybody was light on work. He said that consultants had huge freedom in control of their own work. The witness denied that the Complainant was dismissed for a perceived below par performance dressed up as redundancy. The witness said that it was rare for anybody to have reached targets for sales and income in 2018. The witness said that consultants at that time were only assigned to more than one project if they had sold an extra project themselves. The witness said that reviews looking back for one year seemed less arbitrary than picking other periods. The witness accepted that it was a decision to make three people redundant, that it was a decision to use the criteria selected and that these were not proposals. However, he stated that the management team remained open to other options. The witness said that it would have been ideal if the Respondent could have identified an accurate picture of the pipeline for the next year but that the information was usually only available for three-month periods. The witness did not accept that the Resource Planner was unimportant. He said that it was not complex to fill out. When it was put to the witness that Mr. Reynolds had accepted the Complainant’s unavailability for the new project due to his commitments on the existing project, the witness said that question needed to be put to Mr. Reynolds. The witness said that all consultants were under occupied at the time but normally they could be juggling 2 or 3 projects of 50 days each. The witness explained the system of sales attribution and explained that the reason the management retained discretion was to cater with cases where more than one person was involved. Under questioning from the Court, the witness explained that the Respondent had learned of the existence of the Complainant’s business called ‘Margin Gains Services’ through a consultant based in the U. S., when the Complainant had placed an advertisement in a U. S. publication. He noted that setting up a business in competition with the Respondent was a breach of his contract of employment but that it had been noted at the time that the Complainant was in the course of leaving, so no action was required. Mr. Gerard Conolin: Mr. Conolin is the Complainant. The witness said that he had worked for the fore runner company of the Respondent for 5 years in the 1990s and had re-joined in 2008. With regard to his own business, Margin Gains Services, the witness said that he had been concerned at the amount of travel involved in his job and had identified that at some point he would need to ‘step off’. He had decided to set up a company after he found out in 2015 that Mr. Reynolds was no longer an employee of the company and he had set his company up in December 2016. He said that the first day he had sought work for the company was after he was made redundant. He denied breaching any term of employment and said that the first work for the company was in September 2018. The witness said that when the staff were given a presentation, he thought that he could be made redundant as he had zero billable days. He said that the contract on which he was working was billable to EFESO and not to the Respondent. He was incredulous at Dr. Harte’s claim that he could not identify the likely candidates for redundancy prior to concluding the data search. The witness said that he had always sought work, had told the third member of the senior management team to send him anywhere and that he would go and he had also called into the office regularly. The witness said that he could not confirm the veracity of the figures used to rank consultants as he could not make sense of them. He could not tell if the situation for U. S. colleagues was comparable. He knew that they had different conditions of employment. He said he had never seen the invoicing for the project on which he was working. The witness said that he had been accused by Mr. Reynolds of losing out on allocations of work because he missed monthly meetings. The witness said that everybody missed these meetings regularly as they were often travelling but that he had followed procedures to a ‘T’, and he always looked up the minutes of these meetings. He said that when he challenged Mr. Reynolds, the latter had walked this back down to a factor but the witness disputed that it was ever a factor as billable work was never allocated at those meetings. The witness said that Mr. Reynolds had attempted to close down the meeting on 6 June 2018. The witness said that he found it hard to process that he was being let go after so much effort for his employer and he was unable to come up with alternative suggestions. He was still busy, had no figures that he could understand and he had no expertise in how to save a company. The witness said that he could not understand how he could be made redundant by somebody who was not an employee. Of the 6 alternative jobs notified to him, the witness said that 5 had language requirements that he could not meet. One was based in France and he had some competence in French, but he had three children and he would have needed a lot of time to consider a re-location of that magnitude. The witness said that he was psychologically damaged by his experience. The witness denied that there had been any issue of absence and described the issue of his holidays as a ‘construct’. With regard to his losses, the witness said that he had contacted people who specialised in connecting people with his skills with roles that matched them. He said that he never secured paid employment. He said that he did not believe that the Respondent had a client west of the Shannon. The bulk of businesses in his area were medical device companies and he had no expertise in that area of business. His age was also against him, he was 49 years old at the time. He had secured some consultancy work as a Project Manager for hire. In the period since his dismissal, he had an income of €138,346 gross in total. Compared to his likely income in that time using the previous 29 months to determine, he was €165,724 below where he would have been. Under cross examination, the witness said that he had no experience in rescuing businesses and could not have made alternative proposals as he could not get past his livelihood being taken from him. He said that he had participated in the process by posing questions. He described the experience as ‘devastating’. The witness said that he still did not know what would have been the fairest selection criteria but he would have tried to keep jobs and to avoid redundancies. With regard to the days required for his existing project, the witness said that these had been endorsed by the Project Manager and had been accepted by Mr. Reynolds. The witness said that Mr. Reynolds’ acceptance had rebutted suggestions that the witness had abused the Resource Planner. The witness accepted that he had the benefit of a full appeal but noted that if the review period had been over three years, the outcome would have changed. It was put to the witness that he said his first income from his company was in January 2019 but he had a contract with a company in September 2018. The witness noted that he invoiced for the work from September 2017 but only drew the money out of the company in January 2018. The witness accepted that he had taken on an employee in 2019 but noted that he had to terminate this employment in 2020 due to the pandemic. Note:The witness had to leave at this point. The proceedings adjourned. The Complainant’s representative provided more information regarding the mitigation of losses in advance of the resumed hearing at the request of the Court. The witness accepted that the letters attached to the submission on his behalf in which he had made enquiries regarding employment had issued in the period of June to August 2018 only. The witness said that he had taken no income from his business until January 2019, as the initial work secured was two short term contracts. The witness accepted that the figures shown pointed to a wage paid to him by his company of €53, 000 approx. in 2019. It was put to the witness that, on the basis of P60s submitted, his average salary over a 9-year period up to his termination by the Respondent was €88,000 approx. and that his weekly salary was an average of €1507.85. The witness was unable to confirm this. In response to questions on behalf of the Court, the witness confirmed that he had been concerned about the possibility of redundancy in 2018 as he had not been assigned any billable hours for an eight-month period, in which time 22 projects had been assigned and he knew that four consultants had been assigned to three or more projects. The witness said that he had attended the office of the Respondent and had prepared tenders seeking work. He had been available for billable work and he felt that it was unfair that he had not been assigned work, as a result of which he had been deemed to be redundant under the criteria used by the Respondent. He noted that his two colleagues made redundant were in their first jobs and considerably less experience and acquired skills than him. His sense of unfairness had been compounded by the evidence of Dr. Harte that one of those colleagues had been given an ‘ex gratia ‘payment. In response to a question on behalf of the Court, as to whether the witness accepted that the Respondent’s finances were such that redundancies were inevitable, the witness said that he did not accept this. He noted the positive cash flow in the accounts, the fact that Mr. Melia was able only to give details of the Irish accounts and the fact that the Respondent’s auditors had made no comments in the accounts to the effect that the company was in danger of having to cease questioning. The witness noted also that the biggest single out-going in the accounts was to Greyslate Ltd. and that there was an option for the Respondent to seek to re-schedule contractual payments to that company. He noted that no evidence had been provided to show that any of the payments to that company had been reversed. It was put it to the witness that the figures provided by him put his annual income at about €90,000 in his last year, which would indicate that he had cost €55,000 above what he had brought in, which suggested that his role, though not necessarily the witness himself, was redundant. The witness accepted this but noted that he had not been provided with any billable hours to enable him to earn income for the business. The witness confirmed that his preferred remedy was compensation. The witness stated that, in addition to the approaches to companies regarding employment in 2018, he had made seven or eight further enquiries. He accepted that there was no paper-work and said that he was busy with trying to generate business for his company. For this reason, the witness said that he was limited in his efforts to seek work. When it was put to the witness that his other colleagues all seemed to have secured work, the witness said that he knew that some people had gone back to the Respondent and he knew that some were now on their third employment since leaving the Respondent. In response to questions regarding the finances of the company, the witness repeated his view, as expressed above. The witness said that he did not believe, notwithstanding evidence given for the Respondent, that alternatives to redundancy had been considered. In response to questions regarding the contract with Greyslate Ltd., the witness noted that no evidence of the contract had been provided to the Court. The witness did not accept that it was clear that Mr. Reynolds remained as CEO of the Respondent company at all times. He noted that Mr. Reynolds had a role with EFESO, the parent company, and that Mr. Reynolds had not attended the staff meetings of the Respondent for more than two years. The witness reiterated that he felt he had been singled out and said that he could not understand what motivation there could be for that. The witness could offer no comment on the observations of Dr. Harte in evidence that for the Respondent to have set out deliberately to ensure that he was made redundant would have required such an intent to be in place twelve months prior to the termination of employment. The witness did not accept the reasoning offered for the exclusion of senior management from consideration for redundancy and noted that they carried out consultancy work also. On re-direct questioning, the witness noted that earnings figures given on his behalf showed weekly earnings on the relevant P:60 at €1692 per week or average estimated earnings over a period of €2011 per week, rather than the figure of €1507 cited by the Respondent’s representative in cross examination, a figure for which the witness could not account. THE APPLICABLE LAW: Unfair Dismissals Act 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (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, (7)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 or the Labour 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, REDRESS FOR UNFAIR DISMISSAL: 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee — (a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded. (2B) Where — (a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and (b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be. DELIBERATION: The dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. The burden of proof to establish that a dismissal was due wholly or mainly to redundancy rests with the employer who must also justify the selection process. The first issue for the Court is to determine if there was a true redundancy situation. The Court must be satisfied that there was a genuine redundancy and that redundancy was the main reason for dismissal. It is the contention of the Complainant that he was dismissed for a perceived poor performance and that this dismissal was ‘dressed up’ as a redundancy. The Complainant relies in part on the landmark judgment of Charleton J. inJVC Europe v. Poninsi (2012) E.L.R. 70.This case is, indeed, instructive in identifying what is required to establish that a true redundancy situation exists and that the situation is not, as the learned Judge put it, an attempt to use redundancy as a cloak to weed out under performing employees. The Court notes that there are crucial differences between the circumstances of that case and those of the instant case as inPoninsiit was found that the employer had, in effect, replaced the worker who had been, allegedly, made redundant. ‘Redundancy’ means that the role was discontinued, by definition. In the instant case, there was much debate as to the exact numbers and about the inclusion of the U. S. and India companies in figures for staff reductions but there are inescapable facts that the employer was intent upon achieving staff reductions, that numbers were decreased and that there is no evidence that the Complainant was replaced. The Court was very struck by the evidence of Mr. Melia regarding the Respondent’s finances in this regard. Even a layman unfamiliar with company accounting can appreciate that a company which is suffering losses and which requires an injection of funds from a parent company in order to continue in business, as was advised by Mr. Melia in his evidence, is an enterprise that needs to look to make radical changes to its financial circumstances. In this regard, the Complainant argues that the Respondent is obliged to consider alternatives to redundancy. This is correct. As noted inMulcahy v. Kelly (1993) E.L.R. 35,it is ‘well established that there is an obligation on an employer to look for an alternative to redundancy.’ A genuine redundancy offers an employer protections against claims under the Unfair Dismissals Act. The burden of proof rests with the employer to show that alternatives to redundancy were considered and that there are good reasons why any such alternatives were not chosen. Failure to meet this burden of proof leads to the possibility that employees may have been dismissed unfairly contrary to the Unfair Dismissals Act. The evidence of Mr. Reynolds and Dr. Harte dealt with alternatives. Dr. Harte noted that pay cuts and/or lay-offs would have generated a loss of confidence among remaining consultants and could have triggered some of them to leave the Respondent. This may or may not be a valid conclusion, but it is not for the Court to tell a Respondent company how best to run their business. The requirement is that alternatives be considered, by implication this means that they be given serious consideration and that there must be a plausible reason as to why an alternative is not chosen. To that extent, the Court accepts Dr. Harte’s explanation. Similarly, Mr. Reynolds explained that short time working as an alternative could work only if the financial problems of the Respondent were temporary and there was nothing to indicate that this was so. Again, this may, or indeed may not, be arguable but it is a credible explanation of a consideration that the Respondent took into account and it is not for this Court to substitute its view on how best to run the business if the choice made by the employer has credibility. The Complainant made points regarding the ‘package’ enjoyed by Mr. Reynolds in the context of compulsory redundancies. The evidence given suggests that Mr. Reynolds had to forego a second pay out for which contractual provision had been made. In any event, it is difficult to envisage any court telling Mr. Reynolds that that he was under a legal obligation to forego his contractual entitlements before the question of redundancies could be considered, even if it had been relevant to the within proceedings, which, in light of the evidence of the non- payment, (referred to in evidence by Mr. Melia also), the Court is satisfied that it is not. The Complainant cites the case ofGrenet v. Electronic Arts Ireland Ltd., (2018)as a basis for contending that Mr. Reynolds was not legally entitled to make a decision that the Complainant become redundant as Mr. Reynolds was not an employee of the Respondent. In the view of the Court there are crucial differences betweenGrenetand the instant case. InGrenet,the decision maker was an employee of a parent company who relied solely on the relationship between his company and the subsidiary as the basis for an alleged legal authority to make a decision regarding an employee of the subsidiary. In the absence of evidence that the board of the subsidiary company, the actual employer in the case, had given authority to the decision maker, the Court noted that he had no legal authority in respect of the relevant employment. The case concerned the plaintiff seeking an interlocutory order, which was granted by the Court with the clear statement that the decision was not a binding determination and that the matter could be pursued further in full proceedings. In the instant case, the Court is satisfied on the evidence that Mr. Reynolds had overall responsibility for the running of the Respondent’s business. Just in case there was any doubt, the parent company provided a written statement to the Court to confirm that he had full authority. Of itself, of course, in light ofGrenet,this may not be sufficient. However, no evidence was provided to the Court to contradict the fact that Mr. Reynolds, at all times, acted as Chief Executive. Mr. Reynolds had financial arrangements with the parent company in respect of his role that required him to cease to be an employee of the Respondent. This may be somewhat unusual, though not unknown, but it does not affect materially the fact that he continued to perform the role of Chief Executive/Managing Director at all times and no evidence was offered to the Court, beyond his contractual arrangement, to dispute that he exercised the authority necessary to do so. The Complainant argues that the requirement for consultation prior to redundancy was not met and that, in effect, the Respondent decided selection criteria and then refused to deviate from that decision. In this regard, it is a fact that the Respondent made a decision regarding criteria that did not change despite the Complainant’s objections. The right of an employee to retain their employment requires that employers not just consider alternatives but that they afford affected employees the opportunity, through consultation, to put forward alternatives to them being made redundant. Self-evidently, ‘consultation’ that allows for no change in decisions is not consultation in any meaningful sense. The evidence of the Complainant which is suggestive of a dismissive attitude on the part of the Respondent would be concerning if it is an accurate portrayal of what happened. This concern is tempered by the evidence for the Respondent that suggests a degree of open-ness in respect of the criteria for selection for redundancy. It is a fatal flaw in the Complainant’s position in respect of this matter that he did not avail of the opportunity provided in meetings to put forward alternative proposals regarding the criteria. There is an onus on a party when seeking to rely on an argument that a consultation process was inadequate, to show that they put forward alternatives to what was proposed if they argue that such any such proposal was flawed. That is the very purpose of a consultation exercise. A failure to avail of such an opportunity makes it difficult to sustain any argument of unreasonable behaviour by the other party in respect of a consultation process and, for that reason, the Court is satisfied that the Complainant has not made out a case on this point. The Complainant argues that he was disadvantaged by the criteria used for selection for redundancy as he had been deprived deliberately of the opportunities to effect sales and to generate fee income in the 12-month period prior to the termination of his employment, the period used to apply the criteria for such selection. As was noted by this Court inGillian Free v. Oxigen Environmental UD/206/2011,when there is no agreed procedure for selection for redundancy, there is a requirement on an employer to act fairly and reasonably. The Court notes that the evidence given for the Respondent suggests that for the Complainant to have been deliberately disadvantaged in that way would have required the Respondent to have set out consciously and purposefully twelve months in advance to deprive the Complainant of opportunities in that period. No evidence as to why the Respondent might have decided on such a course was provided to the Court and, on the basis of the evidence given for both parties, the Court is satisfied that this is not a credible claim, albeit that it may be a strong perception on the part of the Complainant. The Complainant argues that a review of sales and fee income over a longer period would have provided a different result and that he would not have been selected for redundancy. This may be valid. However, an employer seeking to reduce staff numbers is required to set criteria that are impersonal and is not entitled to test criteria to see which employees might be affected and then to choose certain criteria because they give a desired outcome in terms of which individuals are affected. Therefore, the Respondent would, most certainly, have rendered itself vulnerable to challenge under the Act if it had looked at the impact of its criteria over different time periods and then made a choice based on who was affected. Had the Respondent chosen to apply the criteria over a different period, the outcome for the Complainant may well have been different but one of his colleagues could well have argued that this was less fair than an application over a single year. What is vital is that there is some rational basis for the selection criteria themselves and that the time frame over which the criteria is reviewed is not designed to achieve a pre-determined outcome that targets individuals. Any time frame chosen for review is arbitrary and open to challenge but if the criteria meet these requirements and if the application of the criteria is impersonal and objective, then, it can be expected, unless there are other relevant factors, that a redundancy accords with the legislative requirements. The most important issue raised by the Complainant is whether the selection criteria were fair or whether, by being based on performance, they were, as identified inPoninsi, simply a cloak used to weed out a perceived under performer. The Respondent refers the Court to the observation inMary Hyland v. Templeville Developments Ltd., UD 1515/2019that criteria for redundancy based on performance can be valid provided they are impersonal and objective. The task, therefore, for the Court is to determine if the criteria meet these requirements or if they were determined in such a way as to target an individual and then to be used as a ‘cloak’. In making this determination, some of the issues dealt with individually above are relevant in their cumulative impact. If the Complainant could establish that he had been deliberately deprived of work in the twelve months prior to the termination, then the choice of that period for review would come into sharp focus. It might also have led to different conclusions regarding the consultation process, whose value, obviously, is set at naught if the entire purpose of the exercise is to target the Complainant for termination. However, as noted above, the Court is not led to those conclusions in respect of those matters on the evidence provided to it. However, inevitably, notwithstandingHyland,the Court has to apply extra scrutiny to criteria based on performance, which is why the Respondent seemingly received advice to apply a matrix of criteria. The Court has to do so in order to be sure that an individual was not targeted for dismissal due to their performance or perceived performance in order to circumvent their rights under the Unfair Dismissals Act and it is to the argumentation around this point that the Court devoted most of its consideration. In particular, the Court is concerned that, in a relatively small organisation, it is eminently possible for an employer to identify easily, in advance of setting criteria, who might be performing and who may not. In this regard, the Court gave consideration to Dr Harte’s remarks in evidence about what he described as the Complainant’s non availability to take on work at one particular time and his non-use of the Resource Planner plus his reference to the Complainant establishing his own business. The Court had to make a judgment as to whether any of these matters played a part in devising criteria that resulted in the Complainant being selected for redundancy. Mr. Reynolds gave evidence that, before the criteria were settled, he was unaware that the criteria when applied would affect the Complainant. In cases under the Unfair Dismissals Act, the burden of proof rests with the employer. The Court had to consider if, on this point, that burden had been met. Given the size of the organisation and the relatively small number of employees, the Court considers it to be unlikely that no member of the management team that determined the criteria was aware as to which employees were likely to be affected by being made redundant once criteria regarding sales and fee income were decided upon. It seems far more likely that some or all of the team were aware of which consultants had the least advantageous figures. Indeed, in the Court’s view it would be extraordinary if it was otherwise. Therefore, it seems to the Court that the criteria were applied in the knowledge that the Complainant would be among those to be made redundant. Prior knowledge of who is likely to be deemed redundant once criteria are applied may not be, in and of itself, a reason to determine automatically that the criteria were subjective and/or personal. For instance, the application of a ‘last in, first out’ arrangement in a small organisation is likely to take place in circumstances where it is known by decision makers in advance as to who is affected. However, the Court, noting that criteria based on performance must be ‘impersonal and objective’ had to determine if these requirements, as perHyland,have been met. The Court also had to determine if, as perBoucher v. Irish Productivity Centre (1994) EAT E.L.R. 205,the criteria were applied ‘fairly and uniformly’. With regard to the latter two requirements, the criteria were used to look at all consultants. The Complainant offered arguments about the exclusion of the senior management team from consideration for redundancy. The Court does not accept the validity of this line of argument. There was a small management team of three people. The Court accepts that the Respondent was entitled to decide that they fell into a different category to consultants and that the Respondent was entitled to determine its management requirement, separate from that of its requirement for consultants, and no unfairness resulted to the Complainant, as a consequence. The fact that managers may also have carried out consultancy work additional to their management function does not, of itself, mean that they are part of the category of consultants. The Complainant was part of the category of consultants and the decision was taken to reduce the number of consultants. With regard to the requirements for impersonality and objectivity, the Court has to weigh carefully in its consideration of the facts of this case that if, as the Court believes to be likely, the Respondent was aware of who would be affected by the application of the criteria, could the Respondent have used the opportunity to rid itself of what they regarded as a poorly performing consultant and, thereby, circumvent the rights of the Complainant to be protected from an unfair dismissal? These are concerns that arise as an inevitable consequence of the use of criteria that are based, in any way, on performance. It follows that such criteria have to be judged on their own, specific, terms and that the judgment of whether they meet the requirements necessary for an employer to meet the burden of proof that an employee had not been dismissed unfairly may well vary from case to case. The Court is not satisfied on the facts that the Respondent has met the burden of proof in the instant case. The Court cannot be satisfied on the balance of probabilities that the Complainant was not singled out to be let go because he was deemed to be a poor performer and it cannot be satisfied that that the criteria applied were not applied with that end in mind. Therefore, the Respondent has not established to the satisfaction of the Court that the redundancy was impersonal. The Court has to be extra vigilant, as perPoninsi,to ensure that an employer does not use a redundancy situation to deal with a perceived performance issue and, thereby, avoid meeting the requirements of the Unfair Dismissals Act. In the instant case, the Court does not find it credible that, before the selection criteria were determined, the Respondent was unaware that the Complainant would be among those to be selected. On the balance of probabilities, the Court believes it to be more likely that the management team were fully aware of which consultants would be affected. It is not credible that a management team would not keep a constant close scrutiny of sales and income. The fact that the Respondent stated otherwise raises issues of credibility for the Court regarding this aspect of the Respondent’s case and leads to the belief that a more credible explanation is that the Complainant was identified as a poor performer and criteria for selection for redundancy were chosen, in part at least, with a view to ceasing his employment. It follows, as a consequence, that there was an unfair dismissal. Given the circumstances of the case, re-instatement or re-engagement are not feasible propositions. In determining an appropriate level of compensation, the Court is obliged to have regard to the terms of s.7 of the Unfair Dismissals Act, notwithstanding the strong arguments of the Complainant’s representative that compensation be set at the upper levels of possibility. In this regard, the Complainant is required to make every effort to mitigate his losses. The Court was provided with documentary evidence of formal contacts with prospective employers that were in single figures. These were not applications for employment as such and were more in the line of enquiries. The Complainant also told the Court, in evidence, that he had made informal contact with up to ten other companies. Even if the Court accepts this evidence, in the period since his dismissal the Complainant, by his own admission, applied for less than 20 positions. As has often been noted in case law, including inSheehan v. Continental Administration Co. Ltd., UD 858/199, ‘time a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’. In that regard, the Complainant falls well short of what is required. The Complainant did, however, to his credit, mitigate his losses through his own business and the Court takes account of that. The Court has regard also to the fact that money was paid to the Complainant at the time of his dismissal in respect of his purported redundancy. Taking all factors into account, the Court determines that the Respondent should now pay a sum of €23,000 in compensation to the Complainant. This amount is additional to what was paid to him when he was dismissed. DETERMINATION: The Decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
