Complainant

Respondent

Parties

Terence  Varian

Sodexo Ireland Limited

Representatives

Byron Wade BL instructed by Barry Sheehan Solicitors

Niamh Ní Cheallaigh , IBEC Executive

Act

Complaint Reference No.

Date of Receipt

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

CA-00042389-001

09/02/2021

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 9 February 2021, the Complainant submitted two complaints to the WRC. The first complaint referred to a claim for unfair dismissal in a Redundancy setting. The second claim referred to a complaint regarding the Transferee, (Respondent in this case) not observing the terms and conditions from a previous employer. The latter claim was withdrawn at hearing.

The claim for Unfair Dismissal in a Redundancy setting was disputed by the Respondent, who furnished a comprehensive submission with associated documents.

I explained that the case would be heard in public, parties would be named, save for special circumstances and witnesses would be expected to elect to take an oath/affirmation to accompany their evidence at hearing.

The Complainant was represented by Byron Wade BL and the Respondent by Ms Niamh O   Cheallaigh, IBEC Executive.

Documents requested at the conclusion of hearing were:

Policy on Redundancy

Salary

Job Profile at previous company

Job Advertisement

Mitigation/sicknotes

I received requested details outside of the job profile at the Transferor business. Instead, I have considered the KPI coloured document submitted by the Complainant.

The Respondent Representative outlined that the Complainant had come to work at the Respondent Facilities business via the Transfer of Undertakings Regulations (TUPE) on 1, December 2019. He had previously worked as an Integrated Facilities Manager (IFM) from August 2019 and transferred on a salary of €60,000 moving to €61,817.00 at the time of cessation.

The Complainant had worked in the capacity of IFM lead/Facilities Manager with the Transferor. The nature of the contract that the Respondent subsequently took on with the client provided for a broader remit of catering, cleaning and building facilities management. The Complainants role primarily involved managing the cleaning team, client projects, raising P. O.s, health and safety and pay roll.

Following the impact of the Covid-19 Pandemic, a reduced foot fall on site, the Respondent found that elements of the complainant’s role could be amalgamated into the existing team and the Complainant was participant in a fair and impartial Redundancy process. This determined that his role was no longer required, and the Complainant was made redundant on 9 September 2020.

The Respondent outlined the chronological progression of the Redundancy process which commenced on 12 August 2020 at a face-to-face meeting, where the Respondent outlined that the impact of the national pandemic had prompted an “Organisational Restructuring “and his role was deemed to be “at risk of redundancy “

The Sodexo consultation process is a three-stage process over a period of a minimum of 14 days and following each meeting you will be provided with copies of the notes of the meeting. These meetings also provide for you to ask any questions or queries that you have regarding the changes. Please note, this 14 Consultation process will commence at this first meeting, taking place on 11 August 2020

The Complainant did not attend a planned Consultation meeting on any of the three dates provided. The Complainant had advised that he was self-isolating.

He was provided with minutes which informed of a restructuring process following covid related loss, Roles were being reviewed across the client contract and his role was at risk.

The Complainant was invited did not attend the second Consultation Meeting on 28 August ,2020. He was provided with notes which reflected

A proposal to remove the IFM lead due to the “client site working at reduced capacity due to reduced footfall, more people working from home in line with HSE guidelines “An exploration of suitable alternative roles across the business.  A notification for the complainant to check the company intranet for internal roles was sent to the complainant on 26 August.

The Complainant was informed that should no alternative role be found; he would be made redundant.

On 31 August 2020 the Respondent received an email from the Complainant which set out his contractual requirements in the face of a completed redundancy. The Respondent replied and encouraged the Complainant to take an active role in the Consultation process currently underway. He was encouraged to attend the next scheduled meeting.

On 3 September 2020, the Complainant raised a grievance through his Solicitor regarding his diminishing role post transfer.

The third Consultation meeting had already been planned and occurred on September 9, without the Complainant.

No redeployment opportunities had been advanced by either party and the complainant was to be made redundant on pay in lieu of notice, accrued annual leave and bonus payment. He did not qualify on tenure for a statutory redundancy payment.

The Respondent notified the Complainants Solicitor of the Company Grievance procedure on 10 September.

On 11 September 2020, the Complainants redundancy was confirmed with invitation to appeal. He appealed the redundancy on 15 October 2020. An outcome to this appeal followed on 18 November 2020 and did not uphold the appeal. The Appeals Manager did not find evidence that the complainant’s role was unfairly selected for redundancy, she identified that he had failed to participate in the pre redundancy consultation process and the complainant “was encouraged to apply for alternative roles   within the business, but he chose not to “. The Appeals Manager also distinguished that the GSM role was distinguished from the IFM role by “full site “responsibility.

On 18 December 2020 the Grievance outcome report was issued.

1 The Complainant had relied on the job title that he took issue with

2 the transfer via TUPE brought complimented the cleaning and soft facilities   with catering facilities

3 Bonus was paid on conclusion of employment

4 No evidence that access to training portal was frustrated by onsite GSM

5 access to site was withdrawn by security team as standard post 12 months, pending updates on   Client induction training

The Respondent contended that the Complainant was subject of a genuine redundancy and that the respondent had behaved responsibly in line with Section 6(7) of the Unfair Dismissal Act. The Complainant had failed to engage in the Consultation process. The Complainant availed of an appeal of the decision to make him redundant which was not upheld.

The Respondent highlighted that the complainant had elected to avail of all three remedies if his case was found to be successful. The Respondent stressed that headcount would not permit any form of complainant re-alignment to the business, and this should be considered by the Adjudicator. The Respondent also raised a high level of dissatisfaction on mitigation lead by the complainant.

Evidence of Mr A. Contracts Manager.  Grievance Manager. Mr A took the Oath in support of his evidence.

Mr A had worked as a Contracts Manager for 10 years. He was not involved in the transfer via TUPE. He addressed the modified grievance lodged by the Complainant on his title, bonus, activation card and the complainants   diminishing responsibility at the business.

He interviewed the Complainant, the GSM, and Ms C, Cleaning Supervisor. He established that the grievance was unfounded. The Complainants terms and conditions and reporting relationship had remained the same on transfer.

He did not establish that the GSM role had usurped the complainants   role. The GSM role was an integrated and broad role where cleaning was to the core. There was no job description attached to the IFM role at Sodexo. There was no document which reflected the difference in both roles.

In redirect, Mr A confirmed that the reduction in footfall had originated from the limit to core production operations in the Pharma   zone.

During cross examination, Mr A confirmed that the GSM role was not present in every location. It depended on the model of governance as bigger contracts come about. Mr A denied that the complainant’s role had diminished post transfer or that he had lost the power to hire and fire. He stated that the Complainant was consulted on new hires and retained the power to hire and fire. He denied that the Complainants role had been reduced from Manager to Supervisor. Mr A countered that the Complainant had not covered catering. This was the GSM domain.

He confirmed that his discussions with the Cleaning Supervisor, Ms C, who was junior to the Complainant, had confirmed “no change “in the complainant’s role.

He acknowledged that communication could have been stronger. He disputed the complainant’s alleged alienation by cessation of the access card and stated that this was merely a monthly

           ” refresh “update.

He was unable to comment on the IFM role being advertised or other roles hired. He did confirm that the Client site constituted an Essential Industry.

Mr A explained that there was no organisational chart, and he had no idea of the pay attributed to the GSM role. He felt that Induction had taken place via courses like health and safety.

Evidence of Ms B, Human Resource Manager, by affirmation  

Ms B confirmed that she had been involved in the Redundancy programme that covered the months of July, August and September 2020, where 11% of the workforce was lost. She had personally engaged in 250 consultations across 4 named base locations. She referred to the redundancies as Collective Redundancies but did not elaborate on the system of selection relied on.

Ms B confirmed that one Weekend Chef had been hired during this period.

During cross examination, Ms B distinguished the GSM role from that of the Complainants role. she said that the GSM role worked with the Human Resource business Partner and managed health and safety, food safety, financial reports, sub-contractors, pay roll and people management. she confirmed that GSMs were hired at the 4 base locations prior to the security contracts.

Hiring is normally done by the Unit Manager.

She confirmed that the Respondent does not rely on LIFO as a mechanism for selection for redundancy. As the Complainant was in a standalone role, a Matrix   was not required.

Ms B confirmed that nobody was hired at the Company during the Complainant’s tenure. She disagreed that an animus existed between the complainant and GSM and that was the reason for his termination of employment.

Ms B confirmed that Induction had occurred in the complainants transfer to the business. She concluded that the complainant would have received help in exploring alternatives to redundancy, but he did not engage in that process. The GSM had commenced work with the Respondent in September 2019

Ms B clarified that Collective Redundancies are notified to the Minister. She clarified that the 11% reduction applied to 2,000 staff. The Complainant was one of 17 employees who transferred to the Business in December 2019.  He was the sole redundancy from this cadre. There was no job description available for the role.

In conclusion, the Respondent representative relied on the application of section 6(4) of the Unfair Dismissal Act in stating that the complainant had been made redundant through a safe and impartial process in response to a reduction in footfall, pre-empted by covid 19. The Respondent denied that he was   unfairly selected or that his role had been deliberately diminished.

The Respondent had hosted a fair process and had introduced opportunities for redeployment, but the complainant had opted out of that process. He was not unfairly dismissed.

The Respondent exhibited the Redundancy Policy and the job description for the GSM post alongside the chronological documentation which accompanied the redundancy process.

Counsel for the Complainant outlined that he had been the subject of a “sham redundancy “when he was dismissed on 9 September 2020.

The Complainant had commenced full time work with the Respondent through the medium of TUPE on 19 August 2019.

The Complainant was transferred to the business in or around the same time as the General Service Manager (GSM) role commenced at the Business. It was the Complainant case that this role went on to usurp his role and despite being present in an essential pharma service, he was unfairly selected for redundancy while new employees were taken on.

The Complainant exhibited an excel spreadsheet which was referred to as a capturing of KPIs measurement at the Transferor business. This was displayed against the absence of an associated job description.

Evidence of the Complainant by affirmation

The Complainant outlined that he had transferred to the Respondent Business as IFM   lead (Integrated facilities lead) in August 2019. This role covered detailed task management and covered everything on site bar catering. He was the lead for 10-11 staff who transferred to the Business. He had reported directly to the Site Engineer. His salary was annualised at €61, 850 plus bonus.

He soon discovered that the GSM role communicated directly to the site lead.

The Complainant confirmed that he had identified the need to replace staff via Human Resources.  

He confirmed that he had been made redundant on September 9, 2020, and considered himself unfairly dismissed. He outlined some of the positions he had applied for post dismissal and undertook to forward these in a zip folder post hearing.

During cross examination, the Complainant confirmed that 2 cleaners had been hired prior to the respondent takeover. He confirmed that one Cleaner had been hired since the transfer of business.

He confirmed that he had not been approached to attend this interview and had no longer been invited to meetings at the respondent business.

He addressed the topic of receiving an invitation to attend a Consultation meeting in August 2020. He had informed the business by text on 17 August that he was having a covid test and was self-isolating. He said he sought an in-person engagement.

He tendered a GP note to cover his absence to return on 31 August 2021. He dismissed the Respondents question that surely, he wanted to have a say at his own consideration for redundancy? He engaged a Solicitor to state his issues at that point. He argued that the consultation process could have waited and rejected the Respondent contention that reorganisation was actively underway at the business. 

He did recall reading the meeting notes he was provided with but argued that he had not been provided with a fair process and not enabled to look for alternatives.

He confirmed that he had attended monthly meetings and had not experienced animosity there.

The Complainant confirmed that he had not objected to the process of TUPE in his case. He was based in the same office before and after TUPE. His absence through sick leave ran from 17 to 30 August.

The Complainant clarified that he had not observed any ongoing restructuring at the respondent business which coincided with the evolution of his own redundancy.

He confirmed that he had seen a notice in the staff canteen one month after his arrival which described the GSM role as having total responsibility.

In conclusion, Counsel for the Complainant argued that the Respondent had not satisfied the required burden of proof in the case. He emphasised that reasons given that an 11%   workforce reduction across the country was vaguely linked to covid 19.

Instead, he submitted that the Respondent had tired of him, were not happy with him and his failure to attend consultation meetings and dismissed him.

He argued for the application of the High Court case JVC Europe ltd v Jerome Panisi [2011] IEHC 279 at para 22.

He stated that the two positions of GSM and IFM collided and there simply wasn’t enough room for both roles in the business. The Complainant had held a primary role in the transferring business which was not maintained post transfer. His skills were interchangeable to justify his survival at the business, yet he became the sole redundancy on site. He was told to apply for jobs which pointed to a certain predetermination.

The GSM   post holder had since departed.

The Complainant sought re-instatement as Facilities Manager due to his age and genuine, but unsuccessful efforts to find new work. He referred to the Respondent recent advertisement for two Management positions, one of which was the complainants position marked at a lower salary. He was requested to exhibit these advertisements.

I have been asked to decide on whether the dismissal which occurred through redundancy on 9 September 2020 amounted to a fair or unfair dismissal? In reaching my decision, I have read and considered the documentation submitted by both parties and I have reflected on the oral evidence adduced.

I must now apply the law to the facts as presented.

It has been the Complainants case throughout that the Redundancy was a “cloak” for an unfair dismissal. This was strongly disputed by the Respondent who countered that the Complainant was subject of a genuine redundancy prompted by the circumstances of the reduced footfall of the Covid 19 pandemic. 

I have honoured my duty to inquire in this case and I have felt obliged to look closely at the facts relied on by both parties as they advanced their respective cases.

In borrowing from Charlton J.  overtures in Panisi: He declares that Redundancy can be a devastating blow ….

Redundancy is not a personal choice. It is in essence the external or internal economic or technological re-orienting of enterprise, whereby work of employees needs to be shed or carried out in an entirely different matter.

In Panisi, he distinguishes the circumstances of how a redundancy can indeed amount to a fair dismissal in accordance with Section 6(4) (c) of the Unfair Dismissals Act and how ultimately based on the facts of that particular case, a redundancy can be found to be a “cloak “for an unfair dismissal. 

I will return to this case later in my analysis. For now, I will set out the law in terms of Dismissal.

Unfair dismissal.

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.

Section 6(4) of the Act provides that a Dismissal is fair if it results wholly or mainly from one or more of capability, conduct or redundancy

It is on this section that the respondent has relied in arguments.

Section 6(7) goes on to provide that an Adjudicator, in reaching her decision, may have regard for

 a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

( b ) to 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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act

Section 6(3) does not have relevance in the case as there was no agreed mechanism on selection of redundancy and the complainant was declared as the sole employee for redundancy on that site and at that time.

My concern was raised at an early stage in the case as to whether this Redundancy was in fact a constituent of a Collective Redundancy? given the respondent declaration of an 11% shedding of 2,000-person workforce, across 4 locations in the months of July, August and September 2020.  This would have placed the complainant in a different corridor of consultation.

The Protection of Employment Act, 1977 places certain obligations on employers faced with the prospect of collective redundancies.

Obligation on employer to consult employees' representatives.

9.— (1) Where an employer proposes to create collective redundancies he shall, with a view to reaching an agreement, initiate consultations with employees’ representatives 

(2) Consultations under this section shall include the following matters—

(a) the possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or mitigating their consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining employees made redundant 

(b) the basis on which it will be decided which particular employees will be made redundant.

(3) Consultations under this section shall be initiated at the earliest opportunity and in any event at least 30 days before the first notice of dismissal is given

The Act goes on to direct Employers in a certain course of action.

Obligation on employer to supply certain information.

10.— (1) For the purpose of consultations under section 9, the employer concerned shall supply the employees' representatives with all relevant information relating to the proposed redundancies.

(2) Without prejudice to the generality of subsection (1), information supplied under this section shall include the following, of which details shall be given in writing—

(a) the reasons for the proposed redundancies,

(b) the number, and descriptions or categories, of employees whom it is proposed to make redundant,

(c) the number of employees, and description or categories, normally employed,]

 (cc)(i) the number (if any) of agency workers to which the Protection of Employees (Temporary Agency Work) Act 2012 applies engaged to work for the employer,

(ii) those parts of the employer’ s business in which those agency workers are, for the time being, working, and

(iii) the type of work that those agency workers are engaged to do,

and 

(d) the period during which it is proposed to affect the proposed redundancies.

 (e) the criteria proposed for the selection of the workers to be made redundant, and 

 (f) the method for calculating any redundancy payments other than those methods set out in the Redundancy Payment Acts, 1967 to 1991, or any other relevant enactment for the time being in force or, subject thereto, in practice. 

(3) An employer shall as soon as possible supply the Minister with copies of all information supplied in writing under subsection (2).

The Respondent witness, Ms B confirmed in evidence that collective redundancies had taken place but did not exhibit the obligatory notification to the Minister.

I have therefore addressed this case as a standalone redundancy outside of the collective fold.

It is a very important backdrop consideration in the case that the Complainants employment transferred to the Respondent via TUPE in December 2019. By that stage, he had just short of 4 months service with the Transferor and did not have the benefit of a job description. `Reference was made in the case documentation to a letter confirming application of TUPE to the complainant dated 25 November 2019. This letter was not exhibited.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 implement the mandatory requirements of Council Directive 2001/23/EC [2001] OJ L82/16

Regulation 5 provides that while a dismissal of an employee by reason of a transfer is prohibited, dismissals can be affected for “economic, technical or organisational (ETO) reasons which entail changes in the workforce “a genuine redundancy may come under that umbrella.

  The Labour Court has recently identified a breach in Regulation 5 in Kenmare Brewhouse Ltd T/A McCarthy’s Bar and Restaurant v Ms Ciara O’Leary, TUD 207.

 This was a case which transferred an employment to a new employer, who then closed for operational reasons, placing the complainant on a “temporary redundancy “. The Court expressed a dissatisfaction with the lack of preparatory framework for the transfer under TUPE and held that the complainant rightly considered herself dismissed on the facts of the case.  Dismissal was found to be unfair. The Complainant found new work shortly after dismissal.

I have reflected on both party’s evidence in this  case.

The Respondent case rested on the redundancy emerging through ETO post TUPE on December 1, 2019 and exacerbated by the reduction in footfall during Covid. I did not hear any evidence of the respondent consideration of support measures as advocated by Public Policy at that time, such as PUP/ Temporary Lay Off, Temporary Wage Subsidy. I found this unusual.

I detected a defined lack of concrete economical, technical or organisational detail of the genesis of the decision to make the complainant redundant. No financial documents were opened, nor was a table of completed redundancies exhibited. This caused me some unease and prompted me to probe further in the case. The loss making was not quantified by the respondent.

Counsel for the Complainant has pointed to an “on all fours “application of Panisi. However, the evolution of the decision to make Mr Panisi redundant emerged against a backdrop of planned change and a culture of pre-determined appointments to positions.

This case has emerged as an aftermath of a TUPE where the management roles of the Transferee and Transferor collided and where the Complainant was made redundant against “ongoing restructuring through covid 19 “

It is of note that the GSM position commenced in October 2019 and came to prominence in this case around the time of the TUPE transfer on December 1, 2019.

From my consideration of the evidence of both parties, I felt that the complainants “onboarding “with the Transferee was lack lustre. He was not inducted at a level synonymous with or commensurate with  a lead role.

 I appreciate that the transfer did not require a change of location and a mere transfer of 17 staff, but at first glance, it seemed to me that the complainant was drifting from the early days of the transfer and the purposeful approach attributed to the Respondent appointed GSM overtook him. He did not recover from that.

I have to conclude that both jobs were separate and distinct to the other. The GSM role had cross site authority and the complainant continued as Integrated Facilities Manager. I found that there was insufficient investment in preparing an organisational chart around these two key posts.

I have concluded that by the time of the first Consultation meeting in August 2020, the Complainant had become an outlier figure in the respondent management team. His role had not been safely tucked into or incorporated into the business post TUPE .

I understand that the contract changed following the transfer of business. I have found that this was not understood by the complainant, who seemed to have an expectation that his job would continue unchanged. A TUPE certainly protects contracted rights, but it can in turn place an employee in a largely changed and challenging world which needs a supportive con joint navigation and review by the Transferee and the worker. I could not find evidence of this con joint approach which might have assisted in this re-launch approach.

To prove a fair dismissal set against a redundancy situation, I must find that that the dismissal arose wholly or mainly from a redundancy situation.

It must follow that in finding that selection was fair.

I must conclude that the behaviour and approach adopted by the Respondent was fair and reasonable.

I had some difficulties with the complainant strategy regarding his response to being placed “at risk “of redundancy.

I appreciate that he may have been preoccupied by a medical matter, but I have found that he ought to have been a participant in the discussions as led by the Respondent. I noted that the facility to ask questions attached to each of the meeting notes went unpopulated. This was a missed opportunity for him. There was scope for him to have a representative present. I found his approach here unnecessarily avoidant. I did not identify a cogent reason for this approach.

I was dubious of the “last minute “submission of a grievance by the complainant’s solicitor just before the 3rd consultation meeting. The nett effect of this was a “spanner in the works “. This grievance was not successful and was not appealed by the complainant. In ways, I viewed it as a red herring.

I found the internal appeal of the redundancy to be overly subjective and  overly  concerned with the consultation process and did not look behind or seek proof of the circumstances for the redundancy. In all of this, I am mindful of the complainant’s evidence that he had not witnessed internal staff changes during the run up to September 2020. I am mindful that by then he mainatained an everyday presence at that site .

I found some analogy with Charlton J in Paanisi here as he wondered whether the redundancy he was asked to decide on where the redundancy had occurred

Pursuant to procedures which were followed in form but not in substance

Based on all that I heard, I could not identify a dismissal which arose from a genuine redundancy on this occasion. I was not provided with compelling details of economic, technical or organisation change. In that I accept Counsels arguments in that regard.

I understand and accept that the complainant was the sole candidate deemed redundant from the 17 transferees from December 2019. I accept that the Respondent was not obliged to rely on an agreed selection mechanism.

I must question the wisdom of the respondent advancing a redundancy consultation while the complainant was on certified sick leave for 75% of the process and departed work again just prior to the last meeting. I would have preferred to see a contingency plan for securing engagement and the approach adopted more inclusive. I found that it really was just a “tick the box “exercise and while I fully endorse the maxim that redundancy is built on impersonality and change.

St Leger v Frontline Distributors Irl ltd [1995] ELR 160

 It must be remembered that in the middle of all redundancies is a livelihood. I found that the impact of a likely dismissal on the complainant was not captured in the respondent management of this process.

I also found a notable shortcoming on the respondents reticent to take reasonable steps to seek alternative employment within the company as an alternative to dismissal. I noted that the respondent decided certain jobs were not suitable, but these were not formally put to the complainant, nor was it reasonable for the complainant to have to explore a jobs board and prepare for interview. The respondent operates a 2,000-employee business and I have found that this approach was very far short of best practice. I have balanced this with the fact that both Ms B and the GSM were working alone, while the complainant was an absentee.

I note the complainants’ submissions that the position held by the complainant has since been advertised at a much lower salary. I reviewed two positions advertised by the respondent and noted the name changes to the cast job names of this case.

In summary, I have not found threads of a redundancy in accordance with Section 7(2) of the Redundancy Payments Act, 1967. I cannot, therefore, conclude that the complainant dismissal arose wholly or mainly from a redundancy in accordance with Section 6(4) (c) of the Unfair Dismissals Act.

Conversely, I have found that the Complainants role was not solidified post transfer and his outlier status was overtaken by that of the GSM role. I have found that the complainant could have acted on this much sooner than he did.

I note that performance issues were not a factor in this case as the complainant received his bonus on cessation of employment. He was not eligible for a lump sum payment in redundancy on tenure .

None the less, this situation made him vulnerable when redundancies were proposed. The Complainant took a step back from the consultation offered around this process and acted very late in the day to seek to save his position. It turned out to be too late.

I have found that the Respondent acted unfairly in not incorporating the complainant’s role into the management sub structure for the business on the client site. I found that the redundancy consultation ran contrary to best practice and lacked effectiveness in securing a participation from the complainant. I found that the measures taken to source alternative work or even  the vacuum in an exploration of state supports for covid 19 pressure points fell far short of a fair employer.

Taking everything into account, I find that the Respondent cannot rely on Section 6(4) as claimed and the Complainant was unfairly dismissed.

I have some unease in the complainants pro-offered mitigation as the posts exhibited reflect application but not throughput or feedback. I found these of limited value.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found the Complainant to have been unfairly dismissed from his position of IFM on 9 September 2020. I have expressed some reservations on the evidence submitted in mitigation.

I have also found that the complainant played a part in his own demise at the business.

I cannot accede to the request for re-instatement or re-engagement. I believe that relations between the parties are not redeemable and nothing I saw at the hearing dissuaded me from this consideration.

Instead, I find that compensation is a just and equitable remedy in this case.

I order the Respondent to pay the Complainant €47,552 (40 weeks gross pay) as compensation in respect of his unfair dismissal.

Unfair Dismissal in a Redundancy context