ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00028751
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sales Director | An Aviation Components Supplier |
Representatives | Self | Claire Bruton BL instructed by Grainne Donnelly, Kennedys |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00036665-001 | 15/06/2020 |
Date of Adjudication Hearing: 12/03/2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed by the Respondent as a Sales Director, his employment commenced on 3rd September 2012 and ended on 18th March 2020. The Complainant was paid a salary of €79,800 per annum. This complaint was received by the Workplace Relations Commission on 15th June 2020. The hearing of this complaint took place virtually on 12th March 2021. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 3 September 2012 with his most recent position being that of Sales Director for Europe and the Middle East.
On the evening of Tuesday, 17 March 2020 he was contacted by his direct line manager, who informed him of redundancies within the group, in the US and Asia. The line manager reassured him that the group was in a good financial position and had taken steps to ensure the stability of the group during the Coronavirus emergency. The line manager expressed his surprise to the Complainant in relation to the redundancies in the US and Asia, as two of his direct reports had been made redundant without any notice to him.
On the 18 March 2020 at 12.11pm, the Complainant received a further call from his line manager who informed him that he had received a message from a Senior Vice President and Head of Materials Division of the Group who had informed him that changes were being made to the European team.
The line manager informed the Complainant that he would contact him with an update when he heard further from the Senior Vice President. At approximately 17.45 on the evening of the 18 March 2020, the Complainant received a further call from the line manager who informed me him that the “news wasn’t good” and that his role was being made redundant.
The line manager informed the Complainant that HR would be in touch with him directly as the next step. The Complainant was shocked by this unexpected news in the absence of any forewarning whatsoever. His immediate reaction was to attempt to try to protect his reputation.
The Complainant asked the line manager to take steps to ensure that he was afforded an opportunity to advise his clients that he was leaving the business, as a matter of professional courtesy.
On 19 March 2020, the Complainant worked as normal awaiting an update from HR in respect of the next steps. He heard nothing from HR. At approximately 20.44 on the evening of 19 March 2020, access to his outlook email platform, all network drives and expenses payment platform was disabled without warning. On the 20 March 2020, the Complainant endeavoured to work as best as he could without access to his outlook emails and the network drives. Having still heard nothing from HR, he contacted the line manager to ask for an update.
The line manager asked him to check the industry standard severance payment in Ireland and said he would speak to HR and come back to him. On the 23 March 2020, he sent a text message to his line manager at 12.43 informing him that typical industry standard for redundancy is 8 weeks’ pay per year of service.
The line manager responded requesting that the Complainant call him later. At 14.18 that afternoon, he received an email from HR which attached two letters: - 1. A Benefits Separation Letter dated 17 March 2020; 2. Confirmation of Redundancy dated 18 March 2020. The line manager was not copied on that email.
At 15.58, the Complainant received a telephone call from a client asking why he no longer worked with the Respondent, which was hugely embarrassing and undermining. The Complainant learned that an email had issued from the European Support team to this client and others at 13.59 advising that he was no longer with the Respondent before HR had contacted him. Later that afternoon, he missed a telephone call and received a text message from the VP Leasing asking if he was “free to take a call”. The Complainant did not answer the call or return the text message as he was too upset.
The Complainant heard nothing further from his employer.
At the time of the purported redundancy he had a number of open topics that required input. He h received a number of telephone calls from clients seeking an update. He was left in the difficult and precarious position of being unable to support those clients any longer while also being unaware of the supports available for his clients internally or who they should contact. His sudden and unexplained departure from the business is negatively impacting on his reputation. It is clear that the decision to terminate his employment was made prior to any communication with him and in the absence of fair procedures to which he was constitutionally entitled.
The Complainant was never advised that his position was being considered for redundancy. There was no consultation process with him and he was never given an opportunity to make representations in relation to potential alternatives to redundancy. No alternatives to redundancy were discussed with him such as lay off, short time, redeployment, pay cut or any other cost saving measures. He was afforded an opportunity to appeal the decision that his role be made redundant.
The decision was made unilaterally, without any input from the Complainant.
The Complainant is concerned about the negative impact on his career and reputation in circumstances where his clients were informed about his purported exit from the business before he was.
The Complainant’s salary is the primary household income, with his wife only recently securing a temporary contract as a Special Needs Assistant, he is am concerned about his family’s financial security. The manner in which this was handled has exacerbated an already difficult and stressful situation.
The Complainant has also recently moved to “sale agreed” on a property and now faces the prospect of losing the property along with the associated costs incurred to date.
The Complainant states his health has been negatively impacted, he has trouble sleeping and he is suffering from anxiety.
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Summary of Respondent’s Case:
The Respondent concedes that the management of the process to make the Complainant’s position redundant was flawed and therefore will not present a defence in relation to the complaint. The Respondent points to the fact that the Complainant was successful in obtaining another position and suffered the financial loss of only one weeks pay and this fact must be taken into consideration by the Adjudication Officer. The representative for the Respondent points to the Unfair Dismissals Act,1977, s.7 (1)(C): s.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 rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances: s.7 (1) (c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances. |
Findings and Conclusions:
The remedy of compensation is described in s.7 (1) (c) of the 1977 Act, this was amended by s.6(a) of the 1993 Act, as: (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. The statute gives no power to award exemplary damages. The High Court (McMenamin J) in Stephens v Archaeological Development Services Ltd ( [2010]IEHC 540, at para 41) explained that the parameters within which an award is made must be ‘strictly within the realm of financial loss and still do not encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages. In coming to a conclusion in the instant case I have decided that the Complainant has an entitlement to one weeks pay being loss of earnings and an additional four weeks pay for the unfair dismissal. The Complainant’s salary as per his complaint form equates to €1534.61 per week times five equals €7,673.08. I now order the Respondent to pay compensation of €7,673.08 (gross) to the Complainant within 42 days from the date of this decision. The parties are advised to seek advice from Revenue in relation to any possible tax implications.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
As outlined above |
Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Unfair Dismissals Act 1977. |