Complainant

Respondent

Parties

Eimear  Boushel-Payne

McCann Advertising Dublin Limited

Complainant

Respondent

Representatives

Einde O’Donnell Solicitor LK Sheilds Solicitors

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-00041404-001

04/12/2020

The Complainant was employed by the Respondent on the 7th January 2019 as an Account Executive and after a period of time she was promoted to the position of Projects and Events Manager. Her employment ended by reason of redundancy on the 24th September 2020. She was paid €2916.67 per month. The Complainant is claiming that a genuine redundancy situation did not exist. The Respondent denies the claim.

Respondent’s Submission

It was submitted that the Respondent operates a locally owned and managed creative agency. The Covid-19 pandemic measures introduced by the Government had a sudden and drastic impact on the business with an immediate drop in revenue and the projected work from May 2020 onwards virtually disappeared. The difficulties which the Respondent encountered were mirrored across the entire advertising industry with it being estimated that there was an overall drop of approximately 46% in advertising spend during quarter 2 of 2020. The impact of the Covid-19 pandemic is still being felt by the Respondent with it still operating substantially below pre-pandemic levels.  The dire financial position in which the Respondent found itself meant that it had to urgently review the staffing levels and to take steps in order to drastically reduce costs to secure the future of the business and as many jobs as possible

The Respondent moved the staff who were required to complete existing projects (and those who were in a position to maximise business with the clients with whom they worked) to reduced hours, introduced salary cuts, placed staff for whom it had little to no work for on temporary layoff and utilised the Temporary Wage Subsidy Scheme. The Respondent also availed of the business rates waiver and  availed of the business restart grants when they became available in August 2020 and a top up to this grant in September 2020.

The Respondent submitted that despite its best efforts, the significant financial impact on the business ultimately resulted in 5 out of the 22 employees being made redundant including the Complainant

The Complainant’s employment was terminated by reason of redundancy. The Complainant claim that she was unfairly dismissed is denied. It was submitted that:

 (a) This was a genuine redundancy situation;

(b) A fair and reasonable selection process was utilised;

(c) An appropriate consultation process was adopted by the Respondent

The Complainant joined the Respondent in the entry-level position of Account Executive in January 2019 and she was promoted to Project and Events Manager in October 2019.

It was submitted that the Complainants role was severely impacted by the Covid-19 pandemic. Her position entailed her looking after clients with a requirement for event management and many of these clients were involved in the hospitality industry. The holding of events was essentially stopped, and the hospitality industry was also severely impacted by the public health restrictions, which were put in place.

The Complainant was placed on temporary lay-off on 8 April 2020.  During this period of lay-off her salary was reduced so that it aligned with the figure that the Respondent was receiving through the Temporary Wage Subsidy Scheme. Throughout the period of temporary lay-off, the Respondent kept the Complainant (and other impacted employees) fully apprised of the company’s position.

In July 2020, it was submitted that the Respondent was left in a position where it had no alternative but to consider a re-structure of the business because sales and income were 50% below expected levels. In an effort to protect the sustainability of its business, the Respondent decided to focus on the areas of work where it was possible to sustain a level of business in the short term and had the best likelihood of growth and development in the long term. The Respondent was reliant to significant degree on the Temporary Wage Subsidy Scheme and in and around this time it was announced that same would be discontinued and replaced by the Employment Wage Subsidy Scheme. Unfortunately, and despite the significant effort to mitigate losses, it made significant losses in the full financial year

On 16 July 2020 an email was issued to all staff confirming that the Respondent had no alternative but to restructure and commence a redundancy process due to the effects that the Covid-19 pandemic was having on the business. The Respondent wrote to the Complainant on 16 July 2020 to inform her that the project management team was being reduced by two and that after the application of a selection matrix that her role had been provisionally selected for redundancy. The Complainant was provided with her score and details of the matrix which was applied.

The selection matrix was scored under six criteria with each criterion being given a specific weighting. The Complainant scored the lowest of the three Project Managers in the pool. The scores applied to the Complainant were explained to her and were not contested during the consultation process and the documentwhich explained the scoring methodology was shared with her during the consultation meeting on 20 July 2020.

A letter dated 22 July 2020 was sent to the Complainant to invite her to a further consultation meeting on 24 July 2020. The Complainant raised a number of queries regarding the redundancy process which were responded to. The Complainant did not to attend the consultation meeting on the 24th July 2020.  Her redundancy was confirmed by letter dated 24 July 2020.  She was afforded an opportunity to appeal the decision to make her position redundant, but she did not to avail of the appeal.

It was submitted that had the Complainant genuinely felt that the selection and consultation process implemented were unfair that she would have raised these issues at the consultation meeting which she attended and could have appealed the decision to terminate her employment with the Respondent by reason of redundancy. The Complainant was given 2 months notice, but due to the Respondent’s financial position, it was not in a position to pay her in lieu of notice and she remained an employee during her notice period.

The Respondent submitted that the Complainant has alleged that her redundancy was not genuine and in support of this she has relied upon a Senior Account Manager role which was advertised by the Respondent a few months after the Complainant’s redundancy process was concluded.  The Complainant has sought to draw a correlation between her role and the role which was advertised and has sought to infer that her position was replaced. It was submitted that there is no basis for this contention and the reasons why the redundancy was required was made very clear and it is abundantly clear that this was a genuine redundancy.

It was submitted that the Account Director resigned on 13 September 2020. This was a senior position and she was the most experienced member of the Project Management team and her unexpected resignation was a blow to the Respondent. To ensure continuity of the business and to meet client expectations, the Respondent formed the view that she had to be replaced with an experienced person. However, owing to the ongoing decline in sales and the financial position in which it found itself, the Respondent’s budget for the role simply did not extend to a direct replacement for the Accounts Director and the role was advertised as a Senior Account Manager. The Respondent submitted that it needed someone who was able to manage clients whose projects include brand as this was one area of the business where clients remained, and it believed it could grow again. An experienced senior hire in this role was further required as the Respondent did not have a Strategic Planner / Director and a level of planning would be required. The Respondent’s intention was to make an appointment who, should there be an up-tick in the economic and financial situation, be ready to step up to the Project / Account Director role. Therefore, the Respondent were seeking someone relatively senior and well experienced in the industry, and it was crucial that it made the right strategic level appointment to this role in terms of client retention and growing and winning new clients.

The Respondent submitted that the Complainant’s efforts in making a correlation between the role which she performed, and the Senior Account Manager role are misconceived. A Senior Account Manager needs a minimum of 3 years’ experience as an Account Manager in a creative agency. The Complainant’s relevant account management experience in a creative agency is limited to 7 months from October2019 to April 2020. While there are some common tasks that all members of the client service team perform such as briefing the creative team, scheduling resource, collaborating with multiple departments and managing end to end projects, there are a number of fundamental differences between the roles and they are not equivalent.

It was submitted that Senior Account Managers are required to undertake and facilitate limited strategic planning and run workshops with their clients as part of integrated campaign management. This is not a requirement of a Project and Events Manager role. The Complainant did not have experience in undertaking strategic planning herself, nor with running workshops as part of integrated campaign management.

It was submitted that writing scoping documents and proposal documents is part of a Senior Account Manager role but is not part of a Project and Events Manager role. The Complainant did not have experience of this element of the role. She was able to cost projects, but this was done under supervision of a more experienced member of the team.

The Respondent submitted that a Senior Account Manager is also required to have experience in the management of brand projects, as well as integrated marketing communications and digital projects. Such skills are not required of a Project and Events Manager who work on a variety of less complex project types including web, social and more traditional channels.

It was submitted that for the reasons as outlined above, the Senior Account Manager role was one which the Complainant simply did not possess the necessary experience to perform. It was open to her to the Complainant to apply for the position, but she chose not to do so.

In response to the Complainant’s claim that the Senior Account Manager role was a suitable a suitable alternative position which should have been offered to her, the Respondent submitted that the role only became available after the Complainant’s redundancy was confirmed on 24 July 2020 when the Account Director resigned on 13 September 2020. The Respondent explored all reasonable alternatives to redundancy during the consultation process with the Complainant and the other employees being made redundant. However, notwithstanding and without prejudice to the fact that Senior Account Manager role was not a suitable alternative position given the Complainant level of experience and the requirements for the role, the issue is moot in the context of the within claim as the position did not exist when she was being consulted with in relation to her potential redundancy. It was submitted that the only onus on employers is to consider any potential alternatives to redundancy that may exist at the time in which they are consulting with an employee in relation to a potential redundancy.

 Witness

Ms. Joanne Curran, Director in charge of Marketing and HR said that the Respondent operates a creative agency. The Complainant was recruited at entry level position of account executive. It was identified that the Complainant had talent and was good with dealing with clients and she was promoted to the position of Project and Events Manager.  The Director said that the Covid-19 pandemic impacted very heavily on the business and clients stopped spending immediately and no events could be organised. They Complainant’s job was impacted severely as she organised events with some clients were in the hospitality sector.  They introduced a range of measures to avoid making employees redundant. and sought rent reduction, cancelled a lease, introduced a shorter working week, reduced salaries, availed of the TWSS and put some employees on lay off including the Complainant.

The Director stated that they tried everything before coming to a decision about making a number of employees redundant. It was decided in July that it was necessary to make some positions redundant. The company drew up a selection matrix. There were 3 people in the selection pool where the Complainant worked and 2 of them would be selected for redundancy.  Following the application of the selection criteria the Complainant and one other employee were selected for redundancy.  The Director said that neither of these 2 positions were filled. 

The Director said that the Project Director resigned at the end of July and the Managing Partner took over this role in addition to her own for a number of months because of the financial situation. It was the most senior role in the company and a decision was taken in October 2020 to advertise the role and it was filled by an experienced person.  The Account Director resigned in September 2020 and as it was also a senior role they needed to replace her with an experienced person. The Director said that they knew that they could not replace her at the same level because of the financial position of the company and they decided to advertise the role at a slightly lower level of Senior Account Manager with the view of recruiting someone with experience who could move up to the more senior role when the business recovered. They wanted a person with 3 years experience in the role. While the Complainant was very good at her job she had only 7 months experience as an account executive in a creative agency and did not have the experience they required to fulfil the role.  The role was filled in January 2021 by a person who had both marketing and creative agency experience.

Legal Submission

It was submitted that this was a genuine redundancy situation which clearly falls withinthe definition of Section 7(2)(b) of the Redundancy Payments Acts i.e. therequirements of the business for employees to carry out the work of a particular kind ceased or diminished or were expected to cease or diminish. As is clearly set out above, the Respondent’s business was and continues to be severely impacted by theCovid-19 pandemic.

 It was submitted that the redundancy process was fair. This was a genuine redundancy situation. A fair and reasonable selection process was utilised, and an appropriate consultation process was adopted by the Respondent. The Complainant raised no objections or issues during the consultation process. She was afforded the right to appeal and did not take up that right. The Respondent relies on Redmond on Dismissal Law (3rd Edtn.) where the commentator Mr Des Ryan states:

“The WRC should adopt a balanced assessment of the overall interactions between the parties surrounding the redundancy process. Thus, even where an employer can be criticised for some elements of its interaction with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.”

It is the Respondent’s position that the Complainant was not unfairly dismissed and that her employment was terminated by reason of redundancy.

The Complainant said that she was headhunted by the Respondent and following the application process she was appointed to the position of Account Executive in January 2019. She said that she was made responsible for several large client accounts and entrusted to travel abroad representing the Respondent managing events, activations and campaigns for them and their clients. The Complainant said that within 9 months she was promoted from Account Executive to Project and Events Manager and she was given additional responsibilities and an increased salary.

On April 8th, 2020, due to the effects of Covid-19, she was placed on temporary layoff which the Respondent reviewed on an ongoing basis and she was to be kept updated on any changes. She received an email on 25th June 2020, informing her that the lay-off would be extended and would continue until August unless otherwise stated but that if business improved she would be called back to work. On July 16th 2020, she was informed by email that her position was being considered for redundancy.

 The Complainant said she was asked for suggestions on how she could retain the employment considering the lack of work. The Complainant said that she did not have any suggestions to offer, but given her absence from the workplace and company activity during furlough, she had no first-hand experience or knowledge of current projects and she was unable to make a comment on how and where her continued employment could be allocated in relation to the current work, projects and needs of the company. She said that she accepted the Respondent’s explanation that they did not have work for her. However, no change of role was discussed.

 The Complainant said that on the 24th July 2020 she was notified of the redundancy and was informed that her employment would end on 24th September 2020.

The Complainant said that she was both shocked and upset to notice several public advertisements of job vacancies in the Respondent’s employment including two vacancies in the department where she had worked.  The position of Senior Account Manager advertised had similar responsibilities to her position of Accounts Executive and Project and Event Manager. She said that based on the similarities of the key responsibilities and duties of her job and that of the advertised job, she came to the reasonable conclusion that this apparently new role was in fact her prior role under a technically different title.

The Complainant said that she performed very well in her role prior to redundancy and was promoted from Account Executive to Project & Event Manager only nine-months after starting with the company. She said that she was already undertaking most of the responsibilities outlined in the advertisement for the job during her employment and had the capacity and experience to expand the role and take on additional responsibilities. She said that the Respondent terminated her contract of employment without reason to do so. The position of Senior Account Manager which was advertised has such a direct correlation and similarity to her role as a Project and Event Manager, the decision to make her redundant was not fair, made in good faith nor in fact based on the reasons (lack of work) given to her for the redundancy. 

The Complainant said that the Respondent should have offered her alternative role of Senior Account Manager and she said that her redundancy was unnecessary, and the new role advertised was a change of title and rewording of responsibilities was an attempt to conceal the fact that the job she did, and the new role were substantively the same. She submits that she was unfairly dismissed.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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. …

Selection for Redundancy

Sub section (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.

 (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:

……

(c) the redundancy of the employee,

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to

do so—

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

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

 “(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

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

The first matter I must consider is whether there was a genuine redundancy situation.

 Section 6 (3) of the Unfair Dismissals Act cited above sets out the conditions where a dismissal for redundancy purposes may be unfair. The EAT in the case of Employee v Employer UD1451/2010 in considering section 6(3) stated:

“For this section to apply there must be other employees in similar employment to whom the circumstances constituting the redundancy applied equally.”

The Respondent submitted in evidence that there was a severe downturn in business due to the Covid-19 pandemic. They reduced hours, implemented salary cuts, placed employees for whom they had no work on temporary lay-off, and availed of the business support schemes implemented by the Government.  Despite this and due to the financial position of the company it was decided to make 5 of the 22 employees redundant including the Complainant. A selection matrix was drawn up and the Complainant was consulted and advised that her job was at risk. No other suitable jobs could be identified for the Complainant and she was notified that she was being made redundant and given 2 months notice which expired on the 24th September 2020.

The Complainant is claiming that the redundancy was not a genuine redundancy because the Respondent advertised the position of Senior Accounts Manager and 2 other positions 5 days after her redundancy notice expired. She said that the duties and responsibilities of the Senior Account Manager position and the positions she had held as Account Executive and Project Event Manager were extremely similar and she concluded this was the position she had been made redundant from and was now being advertised under a technically different title.

The Respondent denied that this was the case. The Project Director resigned in July and the Account Director resigned on the 13th September. These are 2 senior positions within the company and the Complainant did not have the required experience for these positions.  The Accounts Director to whom the Complainant reported was the most experience person and her resignation was a massive loss and had to be replaced by an experienced person. Due to the decline in Sales and the financial position of the company it was decided to that the position would be advertised at a slightly lower level of Senior Account Manager with at least 3 years’ experience with the intention of recruiting a person who could step up to the higher role when the economy improved after the pandemic.  It was submitted that the Complainant was not considered because the position only arose after the Complainant was made redundant, she did not have the required experience for the position (she would have needed at least 3 years as Account Manager) and that in any event she did not apply for it. It was accepted that there were some similarities with the Complainant’s position, but it was submitted that the Complainant worked to the Account Director and it is not unusual for more senior employees to have overlapping duties with junior employees. 

I am satisfied from the evidence that the redundancy of the Complainant’s position arose due the downturn in business because of the pandemic and the consequential loss of revenue causing the company financial difficulties. I note that there were 5 redundancies from a staff of 22 and one other person was made redundant in the Complainant’s area of work. I am also satisfied that the Complainant was consulted about the redundancy and that fair and reasonable selection criteria were applied and there was a right to appeal the decision. Accordingly, I find that the Complainant was dismissed for reasons of redundancy.

 In relation to the Complainant’s claim that her job was advertised following her redundancy, I note that both positions were at a more senior level in the company and the vacancies did not arise until after the Complainant was made redundant. I note that the Complainant reported to the Account Director and she resigned on the 13th of September 2020 and the Complainant was notified of the redundancy on the 24th July 2020, so the vacancy did not exist when the decision about redundancy was made.  I am also satisfied from the evidence that the Complainant’s job was not advertised following her redundancy and the position advertised was the vacancy arising due to the resignation of the Account Director.

For clarity and notwithstanding my above findings above, I will consider whether the employer acted unreasonably (Section 6(7)(a) of the UD Act) in not offering the Complainant the advertised job of Senior Account Manager as she was still on notice until the 24th of September when this vacancy occurred. I note that the advertisement for the position was a lower level role than that of Account Director and the Respondent’s reason for this were due to the financial position of the company set out above. However, I note that the Respondent was seeking to employ an experienced person and one of the essential criteria was that the person had 3 years experience as an account manager in a creative agency. The Complainant had a year and a half experience with the Respondent and was an account manager for 7 months. The Respondent said that the Complainant was never considered for the position because the vacancy did not exist at the time the redundancy consultation concluded and in any event she she did not have the experience they were looking for.  I am satisfied that the Respondent was seeking to employ a person who had more experience than the Complainant in a creative agency. I am satisfied that it was not unreasonable in the circumstances for the Respondent not to offer the Complainant this vacancy.

For all of the above reasons, I find the Complainant was not unfairly selected for redundancy and that she was not unfairly dismissed pursuant to Section 6 of the Act.

I find the Complainant was not unfairly selected for redundancy and consequently she was not unfairly dismissed pursuant to Section 6 of the Act.

Unfair Dismissals Act 1977, Section 6, Unfair Dismissal, Redundancy, Right to alternative position.

Complainant

Respondent

Parties

Eimear  Boushel-Payne

McCann Advertising Dublin Limited

Representatives

Einde O’Donnell Solicitor LK Sheilds Solicitors

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-00041404-001

04/12/2020

The Complainant was employed by the Respondent on the 7th January 2019 as an Account Executive and after a period of time she was promoted to the position of Projects and Events Manager. Her employment ended by reason of redundancy on the 24th September 2020. She was paid €2916.67 per month. The Complainant is claiming that a genuine redundancy situation did not exist. The Respondent denies the claim.

Respondent’s Submission

It was submitted that the Respondent operates a locally owned and managed creative agency. The Covid-19 pandemic measures introduced by the Government had a sudden and drastic impact on the business with an immediate drop in revenue and the projected work from May 2020 onwards virtually disappeared. The difficulties which the Respondent encountered were mirrored across the entire advertising industry with it being estimated that there was an overall drop of approximately 46% in advertising spend during quarter 2 of 2020. The impact of the Covid-19 pandemic is still being felt by the Respondent with it still operating substantially below pre-pandemic levels.  The dire financial position in which the Respondent found itself meant that it had to urgently review the staffing levels and to take steps in order to drastically reduce costs to secure the future of the business and as many jobs as possible

The Respondent moved the staff who were required to complete existing projects (and those who were in a position to maximise business with the clients with whom they worked) to reduced hours, introduced salary cuts, placed staff for whom it had little to no work for on temporary layoff and utilised the Temporary Wage Subsidy Scheme. The Respondent also availed of the business rates waiver and  availed of the business restart grants when they became available in August 2020 and a top up to this grant in September 2020.

The Respondent submitted that despite its best efforts, the significant financial impact on the business ultimately resulted in 5 out of the 22 employees being made redundant including the Complainant

The Complainant’s employment was terminated by reason of redundancy. The Complainant claim that she was unfairly dismissed is denied. It was submitted that:

 (a) This was a genuine redundancy situation;

(b) A fair and reasonable selection process was utilised;

(c) An appropriate consultation process was adopted by the Respondent

The Complainant joined the Respondent in the entry-level position of Account Executive in January 2019 and she was promoted to Project and Events Manager in October 2019.

It was submitted that the Complainants role was severely impacted by the Covid-19 pandemic. Her position entailed her looking after clients with a requirement for event management and many of these clients were involved in the hospitality industry. The holding of events was essentially stopped, and the hospitality industry was also severely impacted by the public health restrictions, which were put in place.

The Complainant was placed on temporary lay-off on 8 April 2020.  During this period of lay-off her salary was reduced so that it aligned with the figure that the Respondent was receiving through the Temporary Wage Subsidy Scheme. Throughout the period of temporary lay-off, the Respondent kept the Complainant (and other impacted employees) fully apprised of the company’s position.

In July 2020, it was submitted that the Respondent was left in a position where it had no alternative but to consider a re-structure of the business because sales and income were 50% below expected levels. In an effort to protect the sustainability of its business, the Respondent decided to focus on the areas of work where it was possible to sustain a level of business in the short term and had the best likelihood of growth and development in the long term. The Respondent was reliant to significant degree on the Temporary Wage Subsidy Scheme and in and around this time it was announced that same would be discontinued and replaced by the Employment Wage Subsidy Scheme. Unfortunately, and despite the significant effort to mitigate losses, it made significant losses in the full financial year

On 16 July 2020 an email was issued to all staff confirming that the Respondent had no alternative but to restructure and commence a redundancy process due to the effects that the Covid-19 pandemic was having on the business. The Respondent wrote to the Complainant on 16 July 2020 to inform her that the project management team was being reduced by two and that after the application of a selection matrix that her role had been provisionally selected for redundancy. The Complainant was provided with her score and details of the matrix which was applied.

The selection matrix was scored under six criteria with each criterion being given a specific weighting. The Complainant scored the lowest of the three Project Managers in the pool. The scores applied to the Complainant were explained to her and were not contested during the consultation process and the documentwhich explained the scoring methodology was shared with her during the consultation meeting on 20 July 2020.

A letter dated 22 July 2020 was sent to the Complainant to invite her to a further consultation meeting on 24 July 2020. The Complainant raised a number of queries regarding the redundancy process which were responded to. The Complainant did not to attend the consultation meeting on the 24th July 2020.  Her redundancy was confirmed by letter dated 24 July 2020.  She was afforded an opportunity to appeal the decision to make her position redundant, but she did not to avail of the appeal.

It was submitted that had the Complainant genuinely felt that the selection and consultation process implemented were unfair that she would have raised these issues at the consultation meeting which she attended and could have appealed the decision to terminate her employment with the Respondent by reason of redundancy. The Complainant was given 2 months notice, but due to the Respondent’s financial position, it was not in a position to pay her in lieu of notice and she remained an employee during her notice period.

The Respondent submitted that the Complainant has alleged that her redundancy was not genuine and in support of this she has relied upon a Senior Account Manager role which was advertised by the Respondent a few months after the Complainant’s redundancy process was concluded.  The Complainant has sought to draw a correlation between her role and the role which was advertised and has sought to infer that her position was replaced. It was submitted that there is no basis for this contention and the reasons why the redundancy was required was made very clear and it is abundantly clear that this was a genuine redundancy.

It was submitted that the Account Director resigned on 13 September 2020. This was a senior position and she was the most experienced member of the Project Management team and her unexpected resignation was a blow to the Respondent. To ensure continuity of the business and to meet client expectations, the Respondent formed the view that she had to be replaced with an experienced person. However, owing to the ongoing decline in sales and the financial position in which it found itself, the Respondent’s budget for the role simply did not extend to a direct replacement for the Accounts Director and the role was advertised as a Senior Account Manager. The Respondent submitted that it needed someone who was able to manage clients whose projects include brand as this was one area of the business where clients remained, and it believed it could grow again. An experienced senior hire in this role was further required as the Respondent did not have a Strategic Planner / Director and a level of planning would be required. The Respondent’s intention was to make an appointment who, should there be an up-tick in the economic and financial situation, be ready to step up to the Project / Account Director role. Therefore, the Respondent were seeking someone relatively senior and well experienced in the industry, and it was crucial that it made the right strategic level appointment to this role in terms of client retention and growing and winning new clients.

The Respondent submitted that the Complainant’s efforts in making a correlation between the role which she performed, and the Senior Account Manager role are misconceived. A Senior Account Manager needs a minimum of 3 years’ experience as an Account Manager in a creative agency. The Complainant’s relevant account management experience in a creative agency is limited to 7 months from October2019 to April 2020. While there are some common tasks that all members of the client service team perform such as briefing the creative team, scheduling resource, collaborating with multiple departments and managing end to end projects, there are a number of fundamental differences between the roles and they are not equivalent.

It was submitted that Senior Account Managers are required to undertake and facilitate limited strategic planning and run workshops with their clients as part of integrated campaign management. This is not a requirement of a Project and Events Manager role. The Complainant did not have experience in undertaking strategic planning herself, nor with running workshops as part of integrated campaign management.

It was submitted that writing scoping documents and proposal documents is part of a Senior Account Manager role but is not part of a Project and Events Manager role. The Complainant did not have experience of this element of the role. She was able to cost projects, but this was done under supervision of a more experienced member of the team.

The Respondent submitted that a Senior Account Manager is also required to have experience in the management of brand projects, as well as integrated marketing communications and digital projects. Such skills are not required of a Project and Events Manager who work on a variety of less complex project types including web, social and more traditional channels.

It was submitted that for the reasons as outlined above, the Senior Account Manager role was one which the Complainant simply did not possess the necessary experience to perform. It was open to her to the Complainant to apply for the position, but she chose not to do so.

In response to the Complainant’s claim that the Senior Account Manager role was a suitable a suitable alternative position which should have been offered to her, the Respondent submitted that the role only became available after the Complainant’s redundancy was confirmed on 24 July 2020 when the Account Director resigned on 13 September 2020. The Respondent explored all reasonable alternatives to redundancy during the consultation process with the Complainant and the other employees being made redundant. However, notwithstanding and without prejudice to the fact that Senior Account Manager role was not a suitable alternative position given the Complainant level of experience and the requirements for the role, the issue is moot in the context of the within claim as the position did not exist when she was being consulted with in relation to her potential redundancy. It was submitted that the only onus on employers is to consider any potential alternatives to redundancy that may exist at the time in which they are consulting with an employee in relation to a potential redundancy.

 Witness

Ms. Joanne Curran, Director in charge of Marketing and HR said that the Respondent operates a creative agency. The Complainant was recruited at entry level position of account executive. It was identified that the Complainant had talent and was good with dealing with clients and she was promoted to the position of Project and Events Manager.  The Director said that the Covid-19 pandemic impacted very heavily on the business and clients stopped spending immediately and no events could be organised. They Complainant’s job was impacted severely as she organised events with some clients were in the hospitality sector.  They introduced a range of measures to avoid making employees redundant. and sought rent reduction, cancelled a lease, introduced a shorter working week, reduced salaries, availed of the TWSS and put some employees on lay off including the Complainant.

The Director stated that they tried everything before coming to a decision about making a number of employees redundant. It was decided in July that it was necessary to make some positions redundant. The company drew up a selection matrix. There were 3 people in the selection pool where the Complainant worked and 2 of them would be selected for redundancy.  Following the application of the selection criteria the Complainant and one other employee were selected for redundancy.  The Director said that neither of these 2 positions were filled. 

The Director said that the Project Director resigned at the end of July and the Managing Partner took over this role in addition to her own for a number of months because of the financial situation. It was the most senior role in the company and a decision was taken in October 2020 to advertise the role and it was filled by an experienced person.  The Account Director resigned in September 2020 and as it was also a senior role they needed to replace her with an experienced person. The Director said that they knew that they could not replace her at the same level because of the financial position of the company and they decided to advertise the role at a slightly lower level of Senior Account Manager with the view of recruiting someone with experience who could move up to the more senior role when the business recovered. They wanted a person with 3 years experience in the role. While the Complainant was very good at her job she had only 7 months experience as an account executive in a creative agency and did not have the experience they required to fulfil the role.  The role was filled in January 2021 by a person who had both marketing and creative agency experience.

Legal Submission

It was submitted that this was a genuine redundancy situation which clearly falls withinthe definition of Section 7(2)(b) of the Redundancy Payments Acts i.e. therequirements of the business for employees to carry out the work of a particular kind ceased or diminished or were expected to cease or diminish. As is clearly set out above, the Respondent’s business was and continues to be severely impacted by theCovid-19 pandemic.

 It was submitted that the redundancy process was fair. This was a genuine redundancy situation. A fair and reasonable selection process was utilised, and an appropriate consultation process was adopted by the Respondent. The Complainant raised no objections or issues during the consultation process. She was afforded the right to appeal and did not take up that right. The Respondent relies on Redmond on Dismissal Law (3rd Edtn.) where the commentator Mr Des Ryan states:

“The WRC should adopt a balanced assessment of the overall interactions between the parties surrounding the redundancy process. Thus, even where an employer can be criticised for some elements of its interaction with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.”

It is the Respondent’s position that the Complainant was not unfairly dismissed and that her employment was terminated by reason of redundancy.

The Complainant said that she was headhunted by the Respondent and following the application process she was appointed to the position of Account Executive in January 2019. She said that she was made responsible for several large client accounts and entrusted to travel abroad representing the Respondent managing events, activations and campaigns for them and their clients. The Complainant said that within 9 months she was promoted from Account Executive to Project and Events Manager and she was given additional responsibilities and an increased salary.

On April 8th, 2020, due to the effects of Covid-19, she was placed on temporary layoff which the Respondent reviewed on an ongoing basis and she was to be kept updated on any changes. She received an email on 25th June 2020, informing her that the lay-off would be extended and would continue until August unless otherwise stated but that if business improved she would be called back to work. On July 16th 2020, she was informed by email that her position was being considered for redundancy.

 The Complainant said she was asked for suggestions on how she could retain the employment considering the lack of work. The Complainant said that she did not have any suggestions to offer, but given her absence from the workplace and company activity during furlough, she had no first-hand experience or knowledge of current projects and she was unable to make a comment on how and where her continued employment could be allocated in relation to the current work, projects and needs of the company. She said that she accepted the Respondent’s explanation that they did not have work for her. However, no change of role was discussed.

 The Complainant said that on the 24th July 2020 she was notified of the redundancy and was informed that her employment would end on 24th September 2020.

The Complainant said that she was both shocked and upset to notice several public advertisements of job vacancies in the Respondent’s employment including two vacancies in the department where she had worked.  The position of Senior Account Manager advertised had similar responsibilities to her position of Accounts Executive and Project and Event Manager. She said that based on the similarities of the key responsibilities and duties of her job and that of the advertised job, she came to the reasonable conclusion that this apparently new role was in fact her prior role under a technically different title.

The Complainant said that she performed very well in her role prior to redundancy and was promoted from Account Executive to Project & Event Manager only nine-months after starting with the company. She said that she was already undertaking most of the responsibilities outlined in the advertisement for the job during her employment and had the capacity and experience to expand the role and take on additional responsibilities. She said that the Respondent terminated her contract of employment without reason to do so. The position of Senior Account Manager which was advertised has such a direct correlation and similarity to her role as a Project and Event Manager, the decision to make her redundant was not fair, made in good faith nor in fact based on the reasons (lack of work) given to her for the redundancy. 

The Complainant said that the Respondent should have offered her alternative role of Senior Account Manager and she said that her redundancy was unnecessary, and the new role advertised was a change of title and rewording of responsibilities was an attempt to conceal the fact that the job she did, and the new role were substantively the same. She submits that she was unfairly dismissed.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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. …

Selection for Redundancy

Sub section (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.

 (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:

……

(c) the redundancy of the employee,

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to

do so—

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

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

 “(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

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

The first matter I must consider is whether there was a genuine redundancy situation. I note that the work performed by the CMS cash application team was transferred to Prague and the Complainant’s job no longer existed in Ireland. I am satisfied therefore that a genuine redundancy situation existed.

 Section 6 (3) of the Unfair Dismissals Act cited above sets out the conditions where a dismissal for redundancy purposes may be unfair. The EAT in the case of Employee v Employer UD1451/2010 in considering section 6(3) stated:

“For this section to apply there must be other employees in similar employment to whom the circumstances constituting the redundancy applied equally.”

The Respondent submitted in evidence that there was a severe downturn in business due to the Covid-19 pandemic. They reduced hours, implemented salary cuts, placed employees for whom they had no work on temporary lay-off, and availed of the business support schemes implemented by the Government.  Despite this and due to the financial position of the company it was decided to make 5 of the 22 employees redundant including the Complainant. A selection matrix was drawn up and the Complainant was consulted and advised that her job was at risk. No other suitable jobs could be identified for the Complainant and she was notified that she was being made redundant and given 2 months notice which expired on the 24th September 2020.

The Complainant is claiming that the redundancy was not a genuine redundancy because the Respondent advertised the position of Senior Accounts Manager and 2 other positions 5 days after her redundancy notice expired. She said that the duties and responsibilities of the Senior Account Manager position and the positions she had held as Account Executive and Project Event Manager were extremely similar and she concluded this was the position she had been made redundant from and was now being advertised under a technically different title.

The Respondent denied that this was the case. The Project Director resigned in July and the Account Director resigned on the 13th September. These are 2 senior positions within the company and the Complainant did not have the required experience for these positions.  The Accounts Director to whom the Complainant reported was the most experience person and her resignation was a massive loss and had to be replaced by an experienced person. Due to the decline in Sales and the financial position of the company it was decided to that the position would be advertised at a slightly lower level of Senior Account Manager with at least 3 years’ experience with the intention of recruiting a person who could step up to the higher role when the economy improved after the pandemic.  It was submitted that the Complainant was not considered because the position only arose after the Complainant was made redundant, she did not have the required experience for the position (she would have needed at least 3 years as Account Manager) and that in any event she did not apply for it. It was accepted that there were some similarities with the Complainant’s position, but it was submitted that the Complainant worked to the Account Director and it is not unusual for more senior employees to have overlapping duties with junior employees. 

I am satisfied from the evidence that the redundancy of the Complainant’s position arose due the downturn in business because of the pandemic and the consequential loss of revenue causing the company financial difficulties. I note that there were 5 redundancies from a staff of 22 and one other person was made redundant in the Complainant’s area of work. I am also satisfied that the Complainant was consulted about the redundancy and that fair and reasonable selection criteria were applied and there was a right to appeal the decision. Accordingly, I find that the Complainant was dismissed for reasons of redundancy.

 In relation to the Complainant’s claim that her job was advertised following her redundancy, I note that both positions were at a more senior level in the company and the vacancies did not arise until after the Complainant was made redundant. I note that the Complainant reported to the Account Director and she resigned on the 13th of September 2020 and the Complainant was notified of the redundancy on the 24th July 2020, so the vacancy did not exist when the decision about redundancy was made.  I am also satisfied from the evidence that the Complainant’s job was not advertised following her redundancy and the position advertised was the vacancy arising due to the resignation of the Account Director.

For clarity and notwithstanding my above findings above, I will consider whether the employer acted unreasonably (Section 6(7)(a) of the UD Act) in not offering the Complainant the advertised job of Senior Account Manager as she was still on notice until the 24th of September when this vacancy occurred. I note that the advertisement for the position was a lower level role than that of Account Director and the Respondent’s reason for this were due to the financial position of the company set out above. However, I note that the Respondent was seeking to employ an experienced person and one of the essential criteria was that the person had 3 years experience as an account manager in a creative agency. The Complainant had a year and a half experience with the Respondent and was an account manager for 7 months. The Respondent said that the Complainant was never considered for the position because the vacancy did not exist at the time the redundancy consultation concluded and in any event she she did not have the experience they were looking for.  I am satisfied that the Respondent was seeking to employ a person who had more experience than the Complainant in a creative agency. I am satisfied that it was not unreasonable in the circumstances for the Respondent not to offer the Complainant this vacancy.

For all of the above reasons, I find the Complainant was not unfairly selected for redundancy and that she was not unfairly dismissed pursuant to Section 6 of the Act.

I find the Complainant was not unfairly selected for redundancy and consequently she was not unfairly dismissed pursuant to Section 6 of the Act.

Unfair Dismissals Act 1977, Section 6, Unfair Dismissal, Redundancy, Right to alternative position.