Complainant

Respondent

Parties

Juan Miguel  Marino Camarasa

Tyco Ireland Ltd.

Representatives

 None

Ms Mary Fay BL instructed by Maria Gallagher Eversheds Sutherland

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-00039516-001

01/09/2020

The Complainant was employed by the Respondent as a “Lead User Experience Architect” on

an annual salary of €70,000. He commenced employment on 9 September 2015. His employment was terminated on 19 June 2020. The Complainant claims that he was unfairly dismissed by nature of unreasonable conduct of the Respondent during a redundancy process. The Complainant accepted at the outset of the hearing that there was a valid redundancy. He also accepted that the selection process for redundancy was not unfair. The Respondent argued that the Complainant was not unfairly dismissed in that his role was made redundant as part of a bona fide redundancy and that the Respondent conducted itself reasonably at all times during the process.     

There was a major global restructuring within the company that led to the closedown of the particular section where the Complainant worked. Eleven people were made redundant, including the Complainant’s line manager and his senior reporting manager. The Respondent conducted individual meetings with employees. The Complainant was invited to a meeting organised by his line Manager, Ms Irene Lam and HR Manager, Ms Rebecca Walsh, on 5 June 2020.  At this meeting the Complainant was advised that his role was redundant as a result of the restructuring and his proposed termination date was 19 June 2020. The Respondent also advised that it make every effort to retain him in the business and asked the Complainant to consider alternative available roles on the career’s portal over the weekend first and meet again on Monday to ascertain if he felt there were any suitable alternatives roles for him. The Complainant was also advised of his statutory redundancy entitlements and the enhanced ex gratia payments that were on offer.

 The above meeting was followed up in writing by email from Ms. Walsh to the Complainant of the same date, noting the matters discussed as follows:

• That the Complainant’s statutory redundancy entitlement was €7,032 based on his years of service;

• That the Respondent was offering an additional ex gratia payment of one month (€6,411.30); plus one month’s pay in lieu of notice (€6,411.30), reimbursement of unpaid leave taken (which in the case of the Respondent amounted to €2,959.06) and that it was hoped to achieve this via a settlement agreement and that the Respondent would contribute up to €650 plus VAT for the Complainant to obtain his own independent legal advice on the proposal.

The Respondent also looked outside the organisation to assist employees in securing suitable alternative roles. An employer emailed his line manager about a possible position in a company based in Cork, which she forwarded to the Complainant. the Respondent also tagged the Complainant on LinkedIn to both alert and effectively endorse him for UX researcher and Design roles advertised by other organisations at the time.

All affected employees, including the Complainant, were also offered outplacement support with Career Change/Outplacement Specialists, LHH Penna. In addition, Rebecca Walsh personally offered to make herself available should the Complainant need assistance or additional support reaching out to contacts in companies where she used to work. However, the Complainant did not avail of the outplacement supports available to him.

There was a follow up meeting on 8 June 2020 between the Complainant, his line manager and Ms. Walsh. The Complainant confirmed at this meeting that he didn’t consider any of the available roles (payroll), with the Respondent, suitable for him. The Complainant pointed out his career achievements and was assured at this meeting that his redundancy was not a personal reflection on his contribution to the Respondent. Ms. Lam pointed out that her role was also impacted by the reorganisation and that she would be leaving the company. She also clarified that the reorganisation not only impacted employees in Cork but in other parts of the world also.

 Following the meeting the Complainant was provided with a standard compromise agreement on an open basis under cover email, dated the 8 June 2020, from Ms. Walsh.  This agreement sets out the termination date of 19 June 2020, as previously advised, and its terms were clear that the termination is on the grounds of redundancy.

 The Complainant sourced his own solicitor and took advice on the terms. While the Respondent engaged with the Complainant’s solicitor regarding possible agreement on ex gratia sums over and above his statutory entitlements in consideration for a standard waiver, as well as other issues such as outstanding payments for contributions made as part of a team working on filed patents, the redundancy itself progressed in accordance with the notified termination date of 19 June 2020. The Complainant sent a group goodbye email “to everyone in Cork” on 17 June 2020.  

 The Complainant clearly engaged with his solicitor and took legal advice and has attached without prejudice communications between the Respondent and his instructed solicitor, as well as communications between his solicitor and himself on without prejudice offers, to his written statement. While it was inappropriate for the Complainant to attach and refer to without prejudice documentation and correspondence, in circumstances where the Complainant has clearly referred to it and waived privilege over same,  the Respondent increased its offer to 2.5 months ex gratia while this sum was clearly recommended to him by his solicitor, the Complainant was not satisfied with the amount and this was rejected on his behalf by his Solicitor who also confirmed that they were no longer acting for the Complainant.

 Consequently, the Respondent wrote by letter dated 2 July 2020 (but emailed on 3 July) directly to the Complainant confirming it was withdrawing the enhanced redundancy payment offer and would instead process the statutory redundancy payment, pay in lieu of notice of one month, and accrued holidays. The Respondent also paid the Complainant a sum of an €2,959.06 representing 10 days’ pay in respect of the voluntary leave taken by the Complainant in response to the Covid-19 emergency, and also honoured its commitment to pay the Complainant’s health insurance for 3 months post termination.

 The Respondent’s letter also noted that the Respondent had received no confirmation from the Complainant that he wished to avail of the Outplacement Service being offered by the Respondent to impacted employees with LHH Penna and asked that he email if he wished to do so.

 The Complainant replied by email dated 3 July 2020 to say that he was open to talk “in compliance within the framework of the actual Labour Regulations” but “neither the forms and the content of what is offered by the Company are acceptable”.

Legal submission;

 The Unfair Dismissals Act 1977 provides at section 6(4) that the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly for 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;

(d) The employee being able to work or continue to work in the position, which he held with a contravention (by him or his employer), of a duty or restriction imposed by or under any statute or instrument made under statute.

 In Hayes -v- O’Kelly Brothers Civil Engineering Ltd UD 268/2001, the EAT held that, absent unfair selection, redundancy was a substantial ground justifying dismissal.  As set out in the case ofA Factory Worker v A Factory (ADJ-00004403)what is required of an employer in such circumstances is to demonstrate that a dismissal was fair by addressing two questions: “firstly, whether there was a genuine redundancy situation and; secondly, was the selection process for redundancy fair”. The Respondent argues that it is significant that the Complainant accepts that it was a genuine redundancy situation and that the selection process was fair.

 In Jeffers v DDC Ireland Limited UC 169/2000 the EAT said that, where a person was being made redundant, there was an onus on the employer to: “(1) to take reasonable steps to seek alternative employment within the company, for the employee being made redundant, (2) to know what positions, if any are available on the relevant date, and (3) to offer any such reasonable alternative positions to the employee whose position is becoming redundant”.

The Respondent submits that it clearly took all of these steps. The Respondent had a careers portal which listed available vacancies and invited employees to consider same. The profiles of affected employees were circulated to senior management to see if there was a fit within the Respondent organisation that did not appear yet as a vacancy. Managers also looked at possible vacancies outside the organisation, including on LinkedIn. The Respondent also offered professional Outplacement Support. The Respondent submits that it acted reasonably in relation to the Complainant at all times.

The Respondent submits that this was a genuine bone fide redundancy following restructuring that impacted a number of employees not just in in Cork but globally. The Respondent further submits that it is clear that the Complainant was advised of the reasons his role was now redundant, as well as other essential details such as the proposed termination date, statutory entitlements and so on. The Respondent proffered an ex gratia package and to pay a contribution for independent legal advice to be obtained and engaged with both the Complainant and his legal advisor in good faith in this regard.

The Respondent submits   that the deficiencies in the process, if any, are so minor in nature as to be covered by the de minimus rule. In Patrick Hall v Irish Water TED161, a case involving breaches of the Terms of Employment (Information) Act, 1994, the Labour Court referred to the established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff. This principle is encapsulated in the Latin maxim de minimis non curat lex (the law does not concern itself with trifles). The Court referred to the judgment of Henchy J. in the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64, at page 69 where Henchy J articulated a generally applicable test in the following terms: –

“In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”

In conclusion the Respondent submits that the Complainant was not unfairly dismissed; his role was made redundant as part of a bona fide redundancy. Neither was he unfairly selected or pooled. The Complainant was given 2 weeks’ notification of the reasons for the redundancy, his statutory entitlements and termination date.

The Respondent endeavoured to find alternative roles for the Complainant both within and outside the organisation.  The Respondent has complied with its statutory obligations and has at all times acted fairly and reasonably, including offering enhanced ex gratia payments to the Complainant; If there has been any “irregular procedure”, as alleged, it is so minor and inconsequential the de minimus rule should apply.

The Complainant worked in “Integrated Offerings”, as part of the Respondent’s organisation. His mission within this organisation was to create a Design Language platform that would be used by everybody in the company, as well as to help the rest of the team in the different projects as needed.

 On 2 April 2020, he received an email in which the Vice President informed the staff to reduce working time during the Covid pandemic. In that same message, he encouraged staff to share ideas on how to alleviate the effects of the Pandemic. He produced an idea and sent it to the Vice President.  Thus, began a process where hours and pay were reduced for all staff.

On 2 June 2020   in a virtual meeting with the European Vice President, a new organisational chart of restructuring was produced. On 4 June 2020 a virtual meeting was told by management that the “Integrated Offerings” section is being dismantled and that some members of that team will be made redundant.   No numbers or identities of the employees affected was given. On the following day, the HR Manager and his line Manager informed him that he was one of the employees affected by the staff reduction. He did not object to it, but they presented the proposal to him as a settlement agreement instead of a redundancy, in such a way that it shows he was the one who wants to leave the company and that he was not being made redundant, as was the case.

He accepts that this type of ‘agreement’ was offered to 11 other employees, but he did not know the details. He was invited to another meeting on 8 June 2020.  A few minutes before that invitation, he received another email from his line Manager saying that the Respondent had been looking for a job for him. On 8 June 2020 his solicitor gave him me some ideas on how to handle the meeting. At this meeting he told the Respondent that he did not agree with the communication he was sent on the previous Friday in that it did not contain a formal redundancy letter.  Later, at 9.03pm the HR Manager sent him an email with a document labelled “Compromise Agreement’ which he was required to sign.  

On Tuesday 9 June 2020 he sent the documentation to his solicitor and informed him that he did not agree with the terms because of a lack of certainty with regard to payment for four patents which were due to be paid to him.

 On Tuesday 16th June he received an email from his solicitor advising him to inform all of his colleagues that his job terminates on 19 June 2020. He disagreed with his solicitor on this point.

On the 18th of June, he received an email, through his solicitor, with the answer from the HR Manager about the patents, and the solicitor set up a meeting for that afternoon.  That same day there was a “One Team Cork – Virtual Town Hall” with the Respondent where he appeared as a nominee for an ‘Excellence Award’. The same day, at 3.00pm he received an email from the HR Manager asking for the laptop, the access card and the rest of equipment provided by his employer. These items were handed over on 19 June 2020. The Complainant submits that his solicitor pressed him to sign the compromise agreement. The Complainant submits that he told his solicitor that he needed a redundancy letter in order to apply for Jobseekers Benefit.

On 24 June 2020 the Solicitor informed the Complainant that the Respondent had terminated his contract on 19 June 2020. The Complainant in evidence stated that the Solicitor urged him to sign the compromise agreement, but he refused to do so.  The Complainant submits that he was still registered as a current employee of the Respondent up until 15 July 2020. He decided to dispense with the services of the solicitor.  

The Complainant did not receive a letter with start and termination dates of his employment until 29 July 2020, thus causing him delay in receiving his social protection benefit.

In conclusion the Complainant argues that the manner of redundancy constituted unfair dismissal in that he did not receive a legitimate letter of redundancy with the date and the reason for dismissal contrary to section 1 of the Unfair Dismissals Act 1977; neither did he receive the appropriate assistance in seeking further employment. The Complainant has not worked since the dismissal and he provided documentation supporting his claim for appropriate mitigation of loss.

The applicable law:

The Unfair Dismissals Act 1977 (the Act) provides at section 6(4) that the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly for 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;

(d) The employee being able to work or continue to work in the position, which he held

with a contravention (by him or his employer), of a duty or restriction imposed by

or under any statute or instrument made under statute.

Section 6(3) provides:

“Without prejudice to the generality of subs. (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 subs. (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”.

Significantly, the Complainant acknowledged at the outset of the hearing that it was a valid redundancy. He also accepted that he was not arguing unfair selection for redundancy. This suffices, in the main, to support the Respondent’s argument that it was not an unfair dismissal under section 6 of the Act. However, the main thrust of the Complainant’s case was that the manner in which the redundancy was conducted was somehow contrary to section 1 of the Act in that he did not receive a valid letter of redundancy. The Respondent argued that the Complainant was at all relevant times on notice of the Redundancy and that the omission of sending a formal letter of redundancy at the end of the negotiated process was a minimal and technical point that did not detract from the spirit of the law.

Evidence was given that the Complainant had not brought the issue of a formal redundancy letter being at issue until proceedings were issued at the Workplace Relations Commission. Furthermore, the Complainant gave evidence that he had been told his position was being made redundant on 5 June 2020 and that he had engaged an independent solicitor of his own choice during negotiations of a compromise severance agreement. Furthermore, a copy of the compromise agreement, which was exhibited, clearly refers to the Complainant’s upcoming redundancy. The Complainant received his statutory redundancy sum, as a default position in not accepting the terms set out in the compromise agreement. I conclude that the Complainant was advised of the reasons his role was made redundant as well as the proposed termination date.  I accept the Respondent’s argument that the omission of a final letter of redundancy on his exit from the Respondent company was a technical and minor issue that did not invalidate a fair dismissal.

The Complainant argued that he did not receive proper assistance in seeking alternative or further employment.  The Respondent gave uncontested evidence that it looked outside the organisation to assist the Complainant in securing an alternative suitable role and gave an example of an outside contact which was acknowledged by the Complainant. The Respondent also offered the assistance of an outside placement agency, but the Complainant declined such an offer. I find that the Respondent made every effort to find alternative employment for the Complainant in a more than reasonable manner.  

In conclusion, I find that the Complainant’s arguments, in this case, appear to stem from his dissatisfaction with the terms of the compromise agreement on offer. Such unhappiness is understandable but cannot be used to sustain a complaint of Unfair Dismissal.

Having taken all the evidence and submissions into account I find that the Complainant’s employment was validly terminated by reason of a bona fide redundancy, therefore I find the Complainant was not unfairly dismissed.  

Having taken all the evidence and submissions into account I find that the Complainant’s employment was validly terminated by reason of a bona fide redundancy, therefore I find the Complainant was not unfairly dismissed.     

Unfair Dismissal, Redundancy.