Complainant

Respondent

Anonymised Parties

A Marketing Executive

A Hotel

Representatives

Mr Donncha Mc Carthy, BL instructed by  BDM Boylan Solicitors

David Gaffney, Gaffney Solicitors

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-00033913-001

21/01/2020

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 21 January 2020, the Complainant submitted a claim for Unfair Dismissal on the grounds of unfair selection for redundancy, to the Workplace Relations Commission.

The claim has been denied by the Respondent.

The Complainant was represented by Donncha Mc Carthy BL instructed by BDM Solicitors. The Respondent was represented by David Gaffney of Gaffney Solicitors. Both parties filed extensive submissions.

The Complainant has not found new work since her dismissal through redundancy on 15 October 2019.

Counsel for the Complainant outlined that this was a claim for Unfair Dismissal. He disputed the presence of a “genuine redundancy “at the Business in October 2019. Instead, he contended that the Respondent had been dissatisfied by the complainants running of a beauty service with advertisement outlets, in her spare time. The Redundancy was a standalone redundancy amongst 60 employees, without due regard for “fair and objective selection criteria “. LIFO had not applied, and he submitted that the complainant had greater service and superior qualifications to those who were retained. The Complainant was not provided with a consultative period in advance of the decision taken to make her redundant.

He went on to introduce that the Complainant is the sole Bread winner in her family, who held a broad range of Business, Psychology and Beauty Therapy qualifications. She had worked at her family business until her relocation in 2014. She held a previous Sales and Marketing position at a separate Hotel.

Counsel outlined that the complainant commenced work as a Sales and Marketing Executive at the respondent hotel on 28 November 2016 and was made permanent dated 30 May 2017. She enjoyed the full confidence of Mr B in her role and her job was recast as a “Sales and Marketing “Manager, which was followed by a pay increase to €35,000, per annum.

The Complainant actively launched a Beauty Treatment service in 2018, without objection from the Respondent. The Complainant contended that a “sea change “followed in how the General Manager engaged with her and she contended that the resultant resentment served to prompt her dismissal rather than a genuine redundancy.

Counsel highlighted that the complainant had received “a push back “from the Hotel when a local newspaper had aired a video for the complainant’s beauty treatments before a video dedicated to the Hotel. The Respondent had addressed the complainant on this matter and instructed her to sign a “way forward “process committed to written form.

The Respondent then took issue that the Complainant had missed some work through a personal family matter. She was reminded that she was required to work 39 hours per week and to clock in.

In July 2019, the Complainant attended a Charity event at the Hotel in a private capacity and was admonished for under sharing advertising potential for the hotel.

On 4 October 2019, the complainant was notified that she was at risk of redundancy. she was informed that the Management and administrative roles were being reviewed for potential Redundancy.

The Complainant did not accept that the Financial position of the Hotel required redundancies as the hotel had engaged in a concurrent investment process and had enlarged the workforce by augmentation of a Human Resource Manager in 2019. The Complainant offered to work reduced hours.

A series of meetings followed with the complainant. On 12 October 2019, the Complainant was informed that her position was one of those under consideration for possible redundancy and invited to a meeting on 15 October, where she was notified of her redundancy. The Complainant concluded her employment by means of a statutory redundancy payment of €4,152.00 and has not managed to find new work since that date.

Counsel argued that the redundancy was not justified as the respondent continued to engage in expenditure at the business. The entire process lacked “impersonality “and was tainted by an ongoing “animus “in relation to the complainants extra contractual work, outside of the Hotel.

Counsel submitted that there was no evidence of the application of any comparative selection criteria. No regard was given to her experience of Human Resource portfolio. LIFO ought to have applied to the Human Resource role, so recently hired for the first time.

In relying on the EAT case of Bennett and Bunzl, Ireland, UD 2409/2009, Counsel for the Complainant pointed to a confirmed unfair dismissal, where failure to return the complainant to a former position, still in existence, was held to be unreasonable by the Tribunal.

Counsel argued that the Redundancy was a cloak for an unfair dismissal arising from the respondent irritation at the complainant’s social media postings. He argued that the outcome was pre-determined, lacked alternative options, lacked objectivity and reasonableness in the selection criteria.

Counsel sought the maximum remedy of €70,000 in respect of the complainant’s economic loss.

During the second day of hearing, the complainant submitted income generated over 2018/2019 but not 2020. The Complainant has not found work post her dismissal.

Evidence of the Complainant.

The Complainant outlined her arrival to the Business in 2016. She believed that her work as a Sales and Marketing Executive was satisfactory. She submitted that she loved the work and made improvements on the Hotel web site, receiving a pay increase to €35,000 in January 2018.

The Complainant detailed that she had been approached to write for a local newspaper in a personal capacity. She suggested that the Hotel take on some sponsored content as a marketing initiative and they agreed. A problem arose on the sequencing of the Public Relations content and Mr C indicated that he was not happy with this. The complainant anticipated that this issue was growing into a disciplinary matter as she refused to sign a reflective letter advanced by Mr C. The letter was amended to reflect that the Journal had suggested the sequencing.

The complainant confirmed that she had a pressing family matter early in 2019 and this required some time off to support this. She lunched at her desk.

The Complainant outlined that she had attended a charity event in July 2019 in her own time. She loaded some photos after the event. She faced a query from Mr C as to “why did she have to put up her photos? “He expressed frustration and told her that he had consulted with an external advisory agency on the complainants off duty work and he understood that she was not prohibited in this work. She formed the view that Mr B was not impressed and felt under attack.

Her role was changed to a unitary role of Marketing and she felt that Mr B was” nit picking” when he addressed hours of work and the prospect of “clocking in and out “. She advised Mr B that she would forfeit pay for time missed.

The Complainant gave details of Personnel changes and redeployments. She described Summer 2019 as a “bumper “where visible upgrading and refurbishment was undertaken. She embraced her Marketing role, unaware of any dissatisfaction from the Board of Management. She did not meet with the External Consultant and was unaware of the Boards plan to make her redundant.

On October 4, she was advised that certain roles were up for consideration of redundancy and her position was in the mix. However, no decision had been made. The Complainant was upset and awaited developments. She requested a shorter working week.

Further meetings followed on 7 and 11 October. The Complainant was confused as mentioned of projected expenditure of €40,000 on a new boiler was articulated there.

She was informed that vacancies existed at Night Porter and Bar Staff but was never offered the Wedding Coordinator or Human Resource position. She perceived that the Human Resource position was being protected, yet this position was the most recent recruited at management level. She had undertaken three new staff inductions in Summer 2019 and had a skill set in this field. She lost sleep and did not discuss with anyone bar one colleague.

An “at risk “letter followed on 12 October. She had requested a salary reduction or lesser hours. she did not receive any offers on alternative roles.

The Complainant received confirmation of her redundancy on 15 October. She was confused as she understood the Hotel was trading well. She felt the selection was unfair. Staff were crying when they heard the news of her departure.

The Hotel had sent her flowers.

The Complainant told the hearing that she had not been appraised that the decision to dismiss her was open to appeal. She had not been provided with selection criteria and was notified of an avenue for challenge.

The Complainant gave evidence on jobs she had applied for. She gave a terse account of income generated since her dismissal in terms of her self-employment.

During cross examination, the complainant explained that she carried a lingering dissatisfaction which led her to believe hat she had been unfairly dismissed. She began to link occurrences within the job and got a bad feeling. She was devastated and believed that she should be compensated.

The Complainant did not accept that she should have been exited over the newest recruit at Human Resource level, October 2018. She contended that she “could have done HR role” She had pay roll experience from 1999. She assisted the current Human Resource Manager and was the “contact person “for staff support.

The spare jobs introduced by Mr B were “not for her “She contended that the decision to make her redundant predated October 4.

The Respondent representative posed the question as to whether the complainant believed that Mr Bs desire to see her go was so pronounced that he agreed to double job himself? The Complainant responded by saying that Sales were taken by another employee.

The Complainant submitted that she had been informed that others were being considered for redundancy, but she was unaware of any breakdown of salary. she had been requested to bring in business during the week before she left.

She agreed that her role had not been replaced but contended that Mr B had others assisting on the work.

The Complainant disputed that her response was just “shock” it was unfair. She felt excluded in terms of any contingency against redundancy. She was not provided with alternatives to consider “nobody came to me “

The respondent solicitor put her extensive knowledge of Human Resources as sufficient grounds for her to know that she should have raised a grievance or appeal. The Complainant responded that she was not offered an appeal.

In response to the Adjudicator, the complainant indicated that she had not received a reason for the change in her role and had not received a training or induction at this time. She had experienced redundancy on one occasion in the past in the 1990s.

She confirmed that the redundancy was not announced at a staff meeting or mentioned at a management meeting. The bonus payment had been made continuously up to the end. She had no idea if voluntary redundancy was considered. She had no knowledge of how the 2017 redundancy was managed.

She confirmed that she handed over her role to two staff members, one of whom presented her flowers 40 minutes after her departure.

She confirmed that she visited the respondent premises on 18 October but had no memory of anything that occurred on that day.

The complainant gave some detail of losses sustained through her self-employed/ Influencer business and the parties agreed and submitted a spread sheet of her earnings. The complainant described that a climate of financial uncertainty in her own business.

The Respondent considered the evidence and submissions on loss and mitigation and contended that there was no corroboration on loss. He contended that the complainant had not made credible strides to mitigate her loss by applying for a small number of positions. He submitted that the respondent could not be accountable for diminished income levels of the complainant’s self-employment.

Evidence of Mr C, former Assistant Manager

Mr C was second in command at the Hotel between June 2017 and December 2018. He confirmed that the Board of Management consisted of Mr A, Mr B, Mr C and the owners.

He recalled that Mr B had began to question whether the complainant was effective in her role? whether her role was necessary and whether she should be kept on at the business? He submitted that he had overheard Mr B in the Bar area asking “can we move her? “in relation to the complainant. He was clear that Mr B was dissatisfied with her.

During cross examination, Mr C confirmed that he was unable to recollect dates for his recollections. He had not intervened as he was seeking to keep his own job but felt a level of disgust. He denied being a hostile witness as his employment had ended badly and confirmed that he was telling the truth.

He confirmed that he had been demoted at the Hotel, following which he left the Business. He denied that his giving evidence was a retaliatory action against his former employer. In redirection, he told Counsel for the Complainant that he understood that Sales and Marketing position had been discussed on two occasions at the Board Meeting in or around July 2018. He confirmed that no action plan had been agreed to act on those discussions.

In closing the Complainants Counsel submitted that while the redress options of re-engagement, re-instatement had not been raised first day, the complainant would be prepared to accept either of those options.

He submitted that oral evidence adduced by the complainant should be considered in terms of year 2020.

He concluded that the business entity had not been loss making and had not generated a report which signalled that a redundancy was necessary. What remained was that the complainant was exited as her external work proved an irritant.

He reflected that the Board of Directors, attributed with the decision taken to move to redundancy in the complainant’s case had not come to give evidence. David Byrne v Telecom cited.

 No evidence had been given on an exploration of pay cuts. The Respondent overlooked the complainants experience in human resources and had not generated a paper linked to selection. No consideration had been given to alternatives.

He concluded that the redundancy lacked authenticity and the respondent had not satisfied the necessary burden of proof. He sought the “full belt “of the adjudicator’s jurisdiction.

I have been requested to inquire into the circumstances of this case and to establish whether the Complainant has been unfairly dismissed? The claim has been stridently defended by the Respondent, on whom the burden of proof rests in the case.

In reaching my decision, I have had regard for all written submissions and documentation. I have also reflected on the evidence adduced over both days of hearing. I wish to commend the parties for the attention, preparedness and representation both parties directed to the case. It was clear from the outset that this was a very important case for both parties, both of whom held opposing views on the evolution of associated events in the case. I have endeavoured to investigate both submissions in a very careful and focussed manner.

Firstly, it is important for me that I set out my jurisdiction in the case. This is a claim for Unfair Dismissal (unfair selection for redundancy). The Complainant has not found new work since her dismissal. The Respondent has not replaced the stand-alone Marketing role at the Hotel.

The parties had not concluded a Severance Agreement.

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.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

……..

Section 6(3) of the Act provides

 (3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

( b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

A dismissal is deemed to be fair if it results wholly or mainly from one or more of the provisions of Section 6(4) of the Act.

(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, and

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

The Respondent has relied on Section 6(4) (c) in their defence of the case, i.e. that the Complainant was the subject of a genuine redundancy.

Section 6(7) of the Act permits me to have regard for  

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

The Respondent has submitted that the Complainant was the subject of a genuine redundancy process brought about following an external Consultants report in August 2019.

The Complainant disagrees and while she acknowledges that she drifted through the redundancy process in real time, with the benefit of hindsight and careful reconstruction, she has linked her outside interests as an Influencer/ Beauty Therapist as the antecedence to a deteriorating employment relationship and a precursor for her selection for redundancy.

I must explain that I was struggling to comprehend the tangibility of the secondary work which the complainant described at hearing. As she expanded, I identified an overlap in a certain Irish TV programme and posed that question. The Complainant confirmed that she aspired to the role of Influencer in tandem with her Beautician Work. These were outside of her role at the Hotel.

Redundancy as provided in the Redundancy Payments Act, 1967

 (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to—

( a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

  ( b ) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

( c ) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

……

Redundancy is based on “Impersonality and Change “St Ledger v Frontline Distributors Ireland ltd [1995]

In Chapter 19 of Maeve Regan, Employment Law, Imelda Higgins and Terence Mc Crann engaged in an interesting societal backdrop to the context of the Redundancy Payments Act, 1967.

“The Redundancy Payments Act, 1967 was adopted against a background of considerable industrial malaise arising out of the impact of new technological innovations on employment. By the early to mid-1960s, it was clear that almost all industries had excessive numbers of employees. The purpose of the Act was to make it easier for employers to respond to economic, organisational and technological change by reducing employee resistance to any resulting job losses. The Act sought to achieve this objective by guaranteeing lump sum payments to employees who lost their jobs. Crucially the Act did not seek to enhance job security, prevent dismissal on redundancy grounds or otherwise create a disincentive to the dismissal of employees …….”

They go on to recognise that an employer holds a right to dismiss an employee through redundancy. They qualify that right with an underscore of concurrent fairness.  

In JVC Europe Ltd v Panisi [2011] , where Charleton J in the High Court on establishing a circumstance of an unfair selection for redundancy within a company re=organisation stated

“Redundancy cannot be a cloak for weeding out those less competent “

In the instant case, the respondent is obliged to prove that a redundancy situation existed, and that dismissal was attributable to that situation. That is that the redundancy was genuine, underscored by a fair and objective selection criterion and that the employer conducted the process reasonably.

I fully appreciate that the management and decision making around redundancy is challenging. It is a major responsibility to have to decide who goes and who stays in a re-organisation in response to the demands of market forces. My attention was drawn early on to an earlier reported redundancy in 2017. It was unclear what methodology accompanied that decision. However, I did note that over the course of time, that position seems to have been restored. All parties accept that the complainant in this case has not been replaced.

I listened carefully to the parties and I considered the evidence of Mr A, CFO to the Business. He painted a picture of some trouble brewing in the June 2019 accounts. I was drawn to his varied recollection on the number of positions which were examined under the “internal look “following this revelation. I was struck by the remoteness of the external consultant’s report and what operationalised as a result. Mr A told the hearing that both he and Mr B had examined the viability of several positions, including their own jobs. For me, this was an unsound practice as it amounted to be a judge in their own cause, which falls short of fair procedures.

I was also struck by the lack of specifics in the financial report, later clarified by Mr B as being an extract. I did not have sight of an identified targeted time line in which these savings were to be achieved. The report lacked the forensic detail normally associated with such financial evaluations.

However, on the conclusion of Mr as evidence, I was left to reflect that I fully accept that Mr A and Mr B examined positions for viability. However, this exercise was not undertaken beyond the

 “desktop “stage and it was not concluded by way of a record or report.

 Given that the evolution of the statement of financial concern had emanated by way of a cogent report, I would have expected the next step to mirror that framework. It did not. This left some doubt in my mind as to the actual substance of the trading difficulties alluded to.

In David Curtin v K O Keeffe, Mary Redmond representing Trustees of Mallow Golf Club UD 964/2014, Kate O Mahony, Chair EAT opened her determination with the following key observation

“There was clear and uncontested evidence before the Tribunal that the financial position of the respondent was in continuing and serious decline from 2018 onwards. The respondents had implemented several cost cutting measures to combat the decline over the preceding years, but the decline continued.”

In this case, the claimant was made redundant through a voluntary Board subsuming his executive function and other duties taken on by an assistant, with longer service, whose hours were increased.

The EAT, of which I was a worker member at the time, found that a genuine Redundancy existed and Section 7(2) (c) of the Redundancy Payments Act, 1967 applied. The Complainant had been in a standalone position and not in “similar “employment in accordance with S .6(3) provisions.

In the instant case, the parties were not at one on the trading state of the business during 2019. The Respondent reported a troubled income generation, which required intervention and savings. The Complainant reported a flourish of spending on hotel facilities present and projected. I did not have the benefit of the full income generation spreadsheet or a recorded current account to resolve this conflict. I accept that the Respondent was seeking to actively manage financial challenges made known to it. I also accept that there was no agreed procedure or guidance on the contract/staff handbook on how redundancy should be addressed.

I listened carefully to the evidence of Mr B.

I understand that he had concerns regarding his perceived overlap of the complainants outside interests on the main business of the Hotel. I found that his actioning of the contractual term on outside interests in the March letter to be a reasonable response to safeguard the hotels interests, inclusive of the amendment made.

I fully accept that he supported the complainant with her personal circumstances during 2019.

I understand that Hotel working is based on multi-tasking skilling and reconfigurations from time to time and this was very present in Mr Bs evidence. I could see that he was striving for excellence.

However, I was not satisfied at the early identification of one position “the marketing position “for redundancy in the 2 September report. I did not receive records of the Board of Management endorsement of this suggestion. I also noted that Mr B attributed the Board with the corporate responsibility for a next step following the notification of financial poor performance.

I note Counsel for the complainant placed a lot of emphasis on their absence from the respondent witnesses citing Byrne v Telecom, I have considered this and find that I prefer the dissent of Dermot Mc Carthy SC in that case. I find that Mr B had devolved authority from his Board and he alone made the decision to action a redundancy in this case.

I accept that the complainant was in a stand alone post and that the terms of Section 6(3) may not apply. However, an employer has an overarching responsibility to act fairly in the face of dismissal. I found that the respondent took a short cut in this redundancy, which may not have been intentional in the pursuance of financial constraint, however, I have identified a significant number of shortfalls with the process which have allowed me to arrive at a finding of unfairness in the complainant’s case.

The Respondent notified that complainant that her role was at risk of redundancy on 4 October. This was qualified with notification of a parallel exploration of all options /alternatives and pay roll review. Two roles were being reviewed for possible redundancy, yet the” at risk” letter was issued to one employee, the complainant. For me, this demonstrated that all other considerations to save the position of Marketing Executive had not been exhausted prior to raising the at-risk letter. This amounts to a serious omission.

It is also inconsistent with the later 7 October at risk letter where the complainant was informed that “your position is one of those under consideration for possible redundancy “I could not establish just how the complainant’s position was selected for exclusive administration because of that statement.

I also note that this action was inconsistent with the thoroughness of approach adopted in March ,2019 in relation to the notification of concern on a perceived overlap of outside interests and in May 2019 on the elaborate redrafting of the complainant’s job profile.  

Given that the complainant was informed that other roles were in consideration for redundancy, it would have been reasonable for the respondent to lead with a criterion for how they determined the redundancy in her case. I was looking for a demonstration that the complainant had been compared to the others mentioned through independent, objective, verifiable criteria. I did not find this. I must conclude that the “short cut “approach was visible here.

During the Consultation meeting of 11 October, the Respondent alerted the complainant that the remaining roles to look at are” 5 named positions” inclusive of the General Manager role. He undertook to go to the Board and work on figures. He did not feedback on this planned analysis or commitment to seek Board intervention. I also found this to be a stark omission.

On resumption of the process on 15 October 2019, the redundancy was confirmed, and the part time work request was vetoed.

 I have been repeatedly   struck by the secrecy attached to the communication of the redundancy by the respondent to staff. I found from the Respondent evidence and followed in that of the Complainant, that there was no organisational awareness of a planned redundancy at floor level. This exclusivity of one employee consideration was unsettling.

 In the minutes of the confirmation of redundancy meeting, Mr B deferred to the complainant on whether she wished to take the lead on how her departure was to be communicated to staff? I found this “hands off “approach to be deeply concerning. I found that the entire process of redundancy was tainted by secrecy and exclusivity.

Redundancy is meant to rest on impersonality and change. This redundancy was overly personalised from an early stage without enough supporting justification. I found that the redundancy was undertaken in a formulaic manner but lacked objectivity in terms of conduct. The process started with the “omega “rather than the “alpha “.

 While I appreciate, that the complainant filled a stand-alone position. I believe that the respondent was obliged to apply a transparent process surrounding her dismissal from a permanent position.  A Dismissal as reflected by Charleton J in Panisi is a life changing event, action in that direction at any time needs to be measured and considerate. I found that the complainant carried a residual trauma following the events at the end of her employment.

I found that there was insufficient attention given to alternatives to dismissal by the respondent. Mr B told me that he had not considered “lay off “and swiftly ruled out the viability of other posts.   He was focussed on reaching savings and that was his sole goal. I have some understanding of the objective but not of the pathway taken in pursuance.

I accept that the Respondent was not bound by LIFO, in this case.

I appreciate that the respondent offered the complainant representation, but she did not avail of it.

I have given some thought to the complainant’s case on “animus “between the parties and the respondents denial of same. I have considered the stratification of the Complainants position in May 2019.

 I had some concern when Mr B said that he had no recall of the aftermath of the July Charity show. I accept the Complainant evidence on this point.

I have also considered Mr Cs evidence and I accept that the complainant was presenting a management challenge for the business in terms of her outside business, but also in her attendance. There was no interruption in her bonus payments or no visible negative reflection on her performance management.

I have also considered the complainants evidence. I found her slightly detached on the events of 2019. I asked her if she had understood the stratification of her role in May 2019. She said she had not been given a reason.

 On closer examination of the accompanying documentation for that period, I could see that this recentering of role was carefully crafted with defined targets. This should have resonated more purposefully with the complainant. I also found her approach to being checked on her time keeping being a little unusual. The Respondent was entitled to address a visible shortfall in time keeping, irrespective of the absence being linked to family matters.

I accept the complainant’s evidence that she believes that she was deceived by the respondent in terms of the redundancy. She discovered the extract from the Financial papers in her preparation for this case and submitted that the decision had been pre-determined, yet it had not been presented to her in that vein. She understood that she could influence the outcome.

I found her submission of her dissatisfaction that she was exited over the Human Resource Manager, who started in 2018 to be interesting. I was due to hear evidence from the Human Resource Manager, but this did not proceed. This dissatisfaction could have been communicated in an internal appeal commensurate with the dismissal. I appreciate that the complainant felt that she was not offered an appeal, but I take on board the respondent representatives point that the complainants working knowledge of the topic of human resources was enough to guide her in demanding an appeal.

I was struck by the complainant’s distance from her own redundancy and could not understand why she chose to proceed without internal representation. I found that her reference to her personal circumstances during 2019 was most likely foremost in her mind during the year causing her to miss some of the nuances being articulated by the respondent in terms of her new role, time keeping, lines of demarcation of her outside interests etc. I believe that she ought to have picked up on these much earlier.

I have not identified a defined “animus” between Mr B and the complainant so as to confirm a “sub plot” for dismissal. I have instead, found that the respondent took a short cut in an established route to proving that a genuine redundancy took place. I found this to be unfair to the complainant.

 I accept that there were “fault lines “in the working relationship of both parties, but in my opinion, the employment relationship was salvageable.

  I accept that the complainant may not have had her full attention on her challenging role during 2019 and this placed her in a position where her position was deemed expendable, at first glance, in the internal reviews by the CFO and General Manager. The speed and superficiality of these reviews which were not supported by records, goes to the root of this case.

The Respondent had not set out a clear line of demarcation of her contracted role vis a vis her outside interests. I appreciate that the outside business evolved during 2018 post completion of her contract of employment.

The Labour Court in Kohinoor ltd and Hussain Ali UDD1629, examined a claim for unfair dismissal through a “sham “redundancy. In finding against the complainant, the Court rejected the complainant’s contention that his dispute with the company caused him to be singled out for redundancy by the company. The Court considered that redundancy was the main reason for dismissal and it fitted into section 7(2) (c) of the Redundancy Payments Act 1967.

 Sadly, I find that on this occasion, the respondent had recourse to redundancy as an accelerated financial management practice without a corresponding due regard for the balancing rights of the complainant to be part of a genuine redundancy, underscored with fair selection criteria amidst a reasonable management action. Boucher v Irish Productivity Centre UD 882 1005/1992

I have found that the Respondent had decided to press on in Business with fewer employees in October 2019. However, I have not identified that the complainant was dismissed through a genuine redundancy. Instead, I found that the decision to make one position redundant and the way this decision was arrived at, acted upon and executed to be substantially short of best practice. I found this to be totally unreasonable.

The Marketing position is closely linked to the Hotels public profile and the job had no visible symptoms of decline in this case. It is notable that the Complainant told me that she had not handed over the position to Mr B, yet the role of General Manager was to subsume this position.

I was also dissatisfied that a direction to the complainant to leave on the day of the decision being communicated to her to be overly harsh.

I have found that the Respondent has not proved the existence of a true redundancy situation or that the decision to terminate the complainant’s employment was attributable to an impoverished set of accounts. Instead, I identified a developing disconnect between the Complainant and the Business which caused her to be the first name thought of once the redundancy was declared in September 2019. What followed later in the form of a” ceremonial redundancy” fell significantly short of best practice and lacked sensitivity, to allow me to conclude that the employers conduct was unreasonable.  This was regrettable.

I have found that the complainant was unfairly dismissed through her unfair selection for redundancy

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide 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 that the complainant was unfairly dismissed. In accordance with my powers conveyed under Section 7 of the Act, I find that this is one case for which justice requires an order of re-instatement, as being appropriate in all the circumstances.

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 she held immediately before her  dismissal on the terms and conditions on which she was employed immediately before her  dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal,

I order the Respondent to re-instate the complainant to the role of Marketing Executive on the same terms and conditions from 15 October 2019.

I would urge the parties to agree a mutually acceptable way forward on the supremacy of the Respondent Marketing Executive role over any or all outside extra contractual interests on the Complainants side.

In accordance with Section 19 of the Act , the sum received in statutory redundancy  lump sum payment is to be repaid by the complainant to the respondent .

Unfair Dismissal, Selection for Redundancy