Complainant

Respondent

Parties

Thomas  Byrne

Part Alliance Group

Representatives

Christopher Horrigan, Blake Horrigan Solicitors

 Management.

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-00041461-001

04/12/2020

The Complainant commenced employment on 19th March 2008. In or around October 2018, his employment transferred to the Respondent by virtue of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. The Complainant held the position of Branch Manager in the Respondent's North Dublin branch.

The Respondent is an automotive part distributor that operates in the UK and Ireland. As a result of the Covid-19 pandemic, the Respondent suffered a significant downturn in business and was required to lay-off employees. Many of the Respondent's branches also temporarily closed during the crisis.

Employment ended on 17th August 2020.

The Complainant had a total annual remuneration package of approximately €44k per annum.

This complaint was received by the Workplace Relations Commission on 4th December 2020.

1                             BACKGROUND

1.1                       The Complainant commenced employment with GSP Motor Factors on 19 March 2008. In or around October 2018, his employment transferred to the Respondent by virtue of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. The Complainant held the position of Branch Manager in the Respondent's North Dublin branch.

1.2                       The Respondent is an automotive part distributor that operates in the UK and Ireland. As a result of the Covid-19 pandemic, the Respondent suffered a significant downturn in business and was required to lay-off employees. Many of the Respondent's branches also temporarily closed during the crisis.

1.3                       On 30 June 2020, the Respondent held a town hall meeting with all the employees in both Dublin branches to explain that the business believed that sales would not return to pre-pandemic levels in the near future. The Respondent proposed to restructure the Irish business by closing the North Dublin branch. The Respondent anticipated that some redundancies would be necessary and following a review of both branches, it was decided to put all roles in both Dublin branches, including that of the Complainant, at risk of redundancy. A copy of a letter from the Respondent notifying the Complainant that he was at-risk of redundancy was produced at the hearing.

1.4                       The Respondent offered voluntary redundancy to all employees. The Complainant did not accept voluntary redundancy but instead expressed an interest in retaining the Branch Manager role within the new structure. The Branch Manager of the South Dublin branch also expressed an interest in this role. As a result, both Branch Managers were pooled together and selection criteria were applied.

1.5                      On 13 July 2020, the Regional Director of the Respondent, met with the Complainant and the other Branch Manager to discuss the proposed selection criteria and scoring. There were six selection criteria which were agreed with the Complainant at this meeting. The Respondent initially proposed to score the employees either a 1 or 0, with which the Complainant agreed. However, this was subsequently changed to weighting based on 1 to 5.

1.6                       On 14 July 2020, the Regional Director met with the Complainant again to discuss his provisional scores. The Complainant did not agree with all of the scores and, following consultation, it was agreed to increase the Complainant's scores.

1.7                       In or around 15 July 2020, the Complainant was invited to a meeting where he was informed that he was unsuccessful in the selection process and that his role was provisionally redundant. The Complainant was offered the position of Assistant Branch Manager which he declined as the salary was on reduced pay. Although the Respondent offered the Complainant an increase in pay to mitigate financial hardship, he ultimately declined this offer. The Complainant was invited to consider other available positions within the organisation. There were some available roles in the UK, but the Complainant could not relocate.

1.8                       In or around the end of July 2020, the Complainant raised concerns with the redundancy consultation process with the Respondent. These concerns were investigated by a HR Consultant, and the redundancy consultation process was temporarily suspended pending the outcome of her decision. On 10 August 2020, the HR Consultant determined that the Respondent had been following a fair process and, as such, the redundancy consultation process resumed. The Regional Director notified the Complainant that the redundancy process would resume by email dated 12 August 2020.

1.9                       On 13 August 2020, the Regional Director held a further redundancy consultation meeting with the Complainant. By email dated 17 August 2020, he notified the Complainant that his role was redundant.

1.10                   By email dated 21 August 2020, the Complainant appealed the decision to make his role redundant.Ms D W, HR Consultant, was appointed on behalf of the Respondent to carry out the appeal. By letter dated 25 August 2020, Ms W D wrote to the Complainant inviting him to a redundancy appeal meeting to take place on 27 August 2020. However, the Complainant asked to postpone this meeting. A copy of relevant letters and emails between the Complainant and Ms W were produced at the hearing.

1.11                   On 3 September 2020, Ms W met with the Complainant to conduct the appeal meeting.

1.12                   On 24 September 2020, Ms W wrote to the Complainant with the outcome of the appeal. Ms W partially upheld a number of the Complainant's grounds of appeal. In particular, she determined that the scores allocated in respect of two criteria, namely, 'sales target' and 'margin target' were incorrectly scored and, as a result, the Complainant's scores were the same as the other Branch Manager such that the Complainant should not have been made redundant. Accordingly, Ms W found in the Complainant's favour and overturned the decision to dismiss.

1.13                   This appeal outcome decision was communicated verbally by the Respondent to the Complainant during a telephone conversation on 11 September 2020. The Complainant was also informed that he would be reinstated with effect from the date of termination of employment and paid all back pay to ensure he would suffer no loss. However, during this call, the Complainant said that he had since found alternative employment and that he did not wish to return to work for the Respondent and that he would prefer to seek compensation instead.

1.14                   During the course of the appeal process it was identified that the Complainant had been paid a voluntary redundancy payment in the sum of €1,300 in error, notwithstanding that he did not apply for voluntary redundancy. This has not been returned to the Respondent.

LEGAL SUBMISSIONS.

'Dismissal' is defined in section 1 of the Unfair Dismissals Acts 1977-2015 (the "UDA") to

mean:

(a)       the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)   the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c)     the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose

It is respectfully submitted that the Complainant was not dismissed for the purposes of section 1 of the UDA. The Respondent issued notice of redundancy on 17 August 2020 which was appealed by the Complainant on 21 August 2020. On 25 August, the Complainant was invited to an appeal meeting which he postponed. However, in or around this time, the Complainant had, or was in the middle of, securing alternative employment. The decision to dismiss the Complainant was overturned, which was communicated to him on 11 September and formally communicated to him in writing on 25 September 2020.

In the case of An Employee v An Employer' the Employment Appeals Tribunal considered whether the employee had been dismissed in circumstances where the decision to dismiss was overturned on appeal. The employee was offered reinstatement but he refused to return to work. The EAT held that "the claimant abandoned his job because he refused to go back to his place of work. The claimant was not dismissed. The claim fails".

In the case of Roberts v West Coast Trains Limited2 the English Court of Appeal considered whether the decision of the Employment Appeals Tribunal, which unanimously decided that the employee was not dismissed, and therefore was not unfairly dismissed, should be upheld. The case concerned an employee who was dismissed following a disciplinary process. The employee appealed the decision which was overturned on appeal, and the employer imposed a lesser sanction of demotion. The Court considered whether the initial decision to dismiss was supplanted by the internal appeal decision. In dismissing the appeal, the Court held:

"in my view, there was a misunderstanding on the part of Mr Roberts in thinking that, when he received the notification of the appeal decision, he was being made an offer, which he could accept or reject ... In summary, the effect of the decision on the appeal was to revive the contract of employment terminated by the earlier decision to dismiss.

In citing the House of Lords decision, West Midlands Co-operative Society Limited V Tipton, the Court referred to the following passage:

"if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other. Both the original and the appellate decision by the employer... are necessary elements in the overall process of terminating the contract of employment. To separate them and to consider only one half of the process in determining whether the employer acted reasonably or unreasonably in treating his real reason for dismissal as sufficient is to introduce an unnecessary artificiality into proceedings on a claim of unfair dismissal calculated to defeat, rather than accord with, the equity and the substantial merits of the case...•

In Sainsbury v Savage4, Brightman LJ held that “if the contract ceased during the period of suspension, should the employee lose the appeal, it must likewise cease if the appeal succeeded so that the odd position would arise that a successful employee who won his appeal could claim compensation on the basis that he had been wrongly dismissed notwithstanding that the clause in question required him to be reinstated. That is an Alice in Wonderland proposition which, with due respect to counsel, is beyond my comprehension•

 The appeals procedure in the Respondent's Disciplinary and Dismissal Policy (the "Policy”) is the standard process followed by the Respondent when carrying out appeals following a dismissal. Clauses 3.9.3 and 3.19.4 of the Policy expressly state that should the decision to terminate an employee's employment be overturned on appeal that they will be reimbursed for lost earnings and be reinstated.

Clause 3.9.3 provides:

A dismissed employee who is reinstated on appeal would normally be reimbursed for lost earnings for the period between dismissal and reinstatement including any period of unpaid suspension. Pay will be based on their normal contractual rate of pay or, on an average of pay earned (normally based on earnings over the preceding 12 weeks) in the case of employees with no defined contractual hours.

Clause 3.19.4 provides:

Where an employee has been dismissed without notice or is not required to work notice, if an appeal against the dismissal is successful and the dismissal overturned, the employee will normally be reimbursed for lost earnings for the period between dismissal and reinstatement at their normal contractual rate of pay.

In the within case, when the Complainant took up alternative employment, he should have withdrawn his appeal before a decision was made. If he had, the initial decision to dismiss would have stood. However, the Respondent was entitled to quash the earlier decision to dismiss and to reinstate the Complainant. This resulted in the continuation of the original contract of employment. That is the normal result of an internal appeal procedure unless the contract otherwise expressly provides. Therefore, there was no dismissal for the purposes of section 1 of the UDA. As such, there is no case over which the Workplace Relations Commission has jurisdiction.

The Respondent refutes any allegation the Complainant may raise that the reason for him not returning to work was because the trust and confidence between the parties had broken down. This was a redundancy situation in which many employees of the Respondent were made redundant and the initial decision to make the Complainant's role redundant was entirely impersonal to him.

Strictly without prejudice to the foregoing, if it is held that the Complainant was dismissed (which is denied), it is submitted that he has suffered no loss, in circumstances where he was duty bound to mitigate his loss under the UDA, which he failed to do.

Section 7 (1) (c) (ii) of the UDA provides:

"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"

Section 7 (2) of the UDA provides:

{2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to-

(b) the extent (if any) to which the said financial Joss was attributable to an action, omission or conduct by or on behalf of the employee,

{c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid

In Murphy v Valley Investment Limiteda refusal of an offer of re-employment with the same employer was held to be a failure to mitigate loss and hence a disentitlement to  compensation.

In the within case, the Respondent offered the Complainant reinstatement and back pay which he refused, thus failing to mitigate his loss. Therefore, we respectfully submit that the Complainant suffered no loss such that any award made by the Workplace Relations Commission should be capped at four weeks' pay in accordance with section 7 of the UDA.

CONCLUSION

We respectfully submit that the Complainant is not entitled to the relief claimed or any relief.

1.      Mr. Tommy Byrne (hereinafter referred to as the 'Complainant') commenced working for the Parts Alliance Group (hereinafter referred to as the 'Respondent') in April 2007 and has not been provided with a Contract of Employment.

2.      At the time of his dismissalthe Claimantheld the position of BranchManager.Hisannual salary was €35,627.52.He was paid a monthly basis as follows:€2,968.96Gross - €2,345.49 Net. The weekly equivalent is €685.14.   In addition, the Claimantwas in receipt of fuel allowance,and could avail ofovertime.

3.      The Respondent had branches in north and south Dublin. The Claimant was the Branch Manager for north Dublin. In or about the 30th June 2020 the Claimant was advised that the Respondent was looking at closing the north Dublin branch and that his role was at risk of redundancy. He was invited to apply for certain roles and duly applied for the Branch Manager role. There was one other applicant, the existing Branch Manager in south Dublin.

4.      The Claimant engaged in the selection process.  During his engagement the Claimant raised serious concerns about the fairness of the process, including the decision, made during a meeting, to change the scoring system. Despite raising these concerns, the process continued, and the Claimant was made redundant. He was notified of the redundancy on the 17th August 2020. The dismissal was effective immediately.

5.      Unlike other staff members, who had to await payment being processed, the Claimant received his termination cheque within a couple of days.

6.      The Claimant found alternative employment which he commenced on or about the 31stAugust2020.

7.      The Claimant appealed the decision to dismiss him, again raising his serious concerns about the process that was employed including the scoring system. The Claimant sought information from the Respondent to prosecute his appeal but same was not provided. In particular, the Claimant sought information as to the scores obtained by the other applicant. The Respondent refused to provide this information citing reasons such as it would be impossible to maintain the other applicant's anonymity. This is despite the fact that the other applicant was clearly known. As will be seen below it is the Claimant's position that the Respondent had made the decision to dismiss him and tailored the selection process to ensure that such an outcome was achieved.

8.      Ultimately, having heard the appeal, it was found that a number of the grounds raised by the Claimant were upheld and it was indicated that the decision to make him redundant should be overturned. The Claimant, who had found alternative employment, would have to give up that job, return to the Respondent and then re­ engage in the selection process.

9.      The following are the key timeline dates:

•          30th June 2020 - Claimant advised that role was at risk of redundancy.

•          29th July 2020 - Claimant emails HR raising concerns about the fairness of the selection process stating inter alia 'I have very strong concerns that the selection process was unfair and constructed in such a way as to deprive him a fair chance of the manager’s position, and to also replace his current contract with one of less favourable conditions. The scoring procedure was changed on the day of the consultation, and after the Complainant raising his concerns with the Regional Director that he did not believe it was fair, the decision was still made not to give him the job that he had spent I 4 years doing.

•          31st July 2020 - Claimant again emails the Respondent looking for a meeting to discuss the process before any formal notice of redundancy is received.

•          31stJuly2020-RespondentputsClaimantintouchwithexternalHRcompany.

•          17th August 2020 -Claimant advised he was being made redundant by emailfrom the Regional Director sent at 16.46 hours.Advised his termination date is the17thAugust2020.

•          21st August 2020 - Claimant writes to Regional Director indicating his intention to appeal seeking copies of inter alia papersrelatingtotheprocessforselectionforredundancy,scoringsystemtogetherwithanychangesoralterationsmadeto itandthe scoresrelatingtothe successfulcandidate.

•          24th August 2020 - Claimant emailed letter dated 25th August 2020 from a Ms DW indicating that she would hear the appeal over the phone on the 27th August 2020.

•          25th August 2020 - Claimant responds again seeking the information sought on the 21st August 2020 indicating his willingness to engage in the appeals process. Claimant provided with some of the information sought

•          2nd September 2020 - Claimant confirms of intention to appeal and raises serious concerns about the process and the bona fides of the redundancy.

•           September 2020 - Appeal meeting held (via telephone)

•         31st August 2020 - Claimant commences alternative employment as a Tele-Sales / Stores person on a gross salary of €35,000.00 per annum

•         11th September 2020 - Claimant told vis telephone conversation that the decision to make him redundant should be overturned Ms.DW making the telephone call.

•         24th September 2020 - Claimant notified in writing of the outcome of the appeal. The letter stated inter alia:

"As part of my investigation I took the time to review the scoring matrix and the relevant scores awarded. Having reviewed the scores allocated in respect of two criteria, namely, 'sales target' and 'margin target', I determined that these were incorrectly scored in error. As a result, your cumulative scores were actually the same as the other Branch Manager meaning that you should not have been made redundant at that stage.

Taking all of the above into account, and following my full consideration of this matter, I determined that the decision to make your role redundant should be overturned."

LEGAL SUBMISSIONS.

Function of the Adjudicating Officer

10.  It is respectfully submitted that the Respondent must prove the decision to dismiss the Claimant was reasonable.

11.  It is respectfully submitted that the reasonableness of the Respondent's behaviour is a factor that can be taken into account. Section 6(7)(a) of the Unfair Dismissals Act 1977, as amended, states;

"(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 –

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

12.  The "band of reasonableness" as applied by Judge Linnane in Allied Irish Banks -v­Purcell [2012] 23 ELR 189 and approved by Noonan J in Governor and Company of the Bank of Ireland -v- Reilly [2015] 26 ELR 229 does not give an employer carte blanche in relation to the decision to dismiss. As was held by the UK Employment Appeals Tribunal in Iceland Frozen Foods Ltd -v- Jones [1982] IRLR 439 at para.25, whilst band of reasonableness test is entirely accurate in law, "it is capable of being misunderstood so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be fair within the section." Indeed, in Reilly Noonan J went on to hold, para.55 ff

56. In assessing the reasonableness of the employer's conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer's response.

60. Having regard to all of the foregoing, I am satisfied that the conduct of the bank in relation to Mr Reilly's dismissal and the events leading up to it could not by any objective standard be described as reasonable.  The evidence has driven me to the conclusion that at a very early juncture, probably on February 17, 2009, a decision was made within the hierarchy of the bank to make an example of Mr Reilly in order to deter others from similar behaviour in the future. That decision may or may not have been made by GIR, but as a minimum was strongly influenced by it. Whilst lip service was paid to observance of procedures, it is clear that there was only ever going to be one outcome. The bank’s response in this case was entirely disproportionate and could not in my view be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue.

13.  Thus, under the test a reasonable employer is presumed to act with regard to the principle of proportionality. Therefore, the application of the test of the band of reasonable responses permits, indeed requires, the Adjudicating Officer to have regard to the proportionality of the Respondent's actions. Another way to put this that the more severe the consequences of an employer's action, the narrower the band reasonable responses open to the employer become.

14.  In the instant case, the Respondent found that the decision to dismiss the Claimant was unfair. It is not clear what grounds the Respondent is defending the within claim and accordingly the Claimant reserves the right to adduce such further submissions as may be necessary

Procedural Fairness.

15.   It is trite to say a decision to dismiss an employee will be unfair if it is arrived at by a process which does not accord with fair procedures. In Hennessy -v- Read &Write Shop Ltd UD 192/1978the Employment Appeals Tribunal (see also Doyle -v- Asilo Commercial Ltd (t/a Ely HQ) [2008] IEHC 445, (Unreported, High Court, McGovern J, 5th December 2008) described the reasonableness aspect of unfair dismissal as follows:

(1) the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant, and

(2) the employer's conclusion following such enquiry that the claimant should be dismissed

In the instant case, the Respondent found that the decision to dismiss the Claimant was unfair. It is not clear what grounds the Respondent is defending the within claim and accordingly the Claimant reserves the right to adduce such further submissions as may be necessary.

Claimant's Loss.

16.   The Claimant's loss is ongoing and despite the Respondent's hopeful suggestion (in the letter dated 24th September 2020) that the Claimant is only entitled to 4 weeks remuneration, in fact the Claimant is entitled to recover for his loss which includes the full difference in remuneration.

17.   This loss is ongoing and includes, for example the loss of fuel allowance and overtime.

18.   The claimant has estimated the loss as follows:

19.   In the circumstances, the difference in the Claimant's annual remuneration is estimated at €8,952.87.

CONCLUSION.

20.   The Respondent's behaviour in the entire process clearly evidences that a decision was made to dismiss the Claimant at an early stage. Whatever required changes or alterations to the 'selection' process to ensure the goal of dismissal was achieved took place.

21.   A good example of the Respondent's conduct is the fact that it would not provide the Claimant with scoring obtained by the other applicant prior to his appeal citing anonymity - notwithstanding that there was only one other party whose identity was clearly known to all. This behaviour clearly indicates that the Respondent was not conducting the process in a fair and transparent manner. Furthermore, there is no evidence that the Respondent even contacted the other applicant to ascertain whether or not there was any objection to sharing the scores obtained.

22.  Although the Respondent offered, having found that the process was unfair and having found that the Claimant should have obtained the same scores as the other applicant to re-employ the Claimant. At that point the Claimant had already obtained new employment and in any event the re-employment would result in the Claimant re­ entering into the selection process. In other words, the Respondent required the Claimant to give up his new employment and then enter into a selection process in circumstances where he had not been provided all the information he had sought, the final outcome of which could be the subsequent dismissal (again).

23.  Accordingly, it is submitted that, given the Respondent's admission that the selection process was flawed, that the within hearing is primarily concerned with the assessment of the Claimant's loss.

The plight of the Respondent company due to the Covid pandemic is well documented and is not the subject of challenge by the Complainant.

The Respondent had branches in north and south Dublin. The Claimant was the Branch Manager for north Dublin. In or about the 30th June 2020 the Claimant was advised that the Respondent was looking at closing the north Dublin branch and that his role was at risk of redundancy. He was invited to apply for certain roles and duly applied for the Branch Manager role. There was one other applicant, the existing Branch Manager in south Dublin.

It should be noted that by letter dated 30th June 2020 the Complainant received a letter from the Regional Director outlining the above and that his role was at risk of redundancy. This letter clearly states that “This letter does not in itself constitute notice of redundancy”.

 On Monday 17th August 2020 the Complainant received an email from the Regional Director, the following is an excerpt from this email:

“We have now reached the end of the consultation process and unfortunately, as we were unable to find you a suitable alternative position or avoid this redundancy situation it is with great regret that I am sorry to inform you that you have been selected for redundancy.

By this letter the Company therefore gives you notice that your employment will terminate by reason of redundancy on 17th August 2020. You are not required to work your notice but will instead receive 12 weeks payment in lieu of notice”.

I note that the wording used includes “you have been selected for redundancy”.

Section 17(1) of the Redundancy Payments Act (as amended) reads as follows:

17(1) An employer who proposes to dismiss by reason of redundancy an employee who has not less than 104 weeks service with that employer shall, not later than 2 weeks before the date dismissal, give to the employee notice in writing of the proposed dismissal.

Notice pursuant to section 17(1) of the Redundancy Payment Act, 1967 was never issued to the Complainant.

On 13 July 2020, the Regional Director of the Respondent, met with the Complainant and the other Branch Manager to discuss the proposed selection criteria and scoring. There were six selection criteria which were agreed with the Complainant at this meeting. The Respondent initially proposed to score the employees either a 1 or 0, with which the Complainant agreed. However, this was subsequently changed to weighting based on 1 to 5.

The reasons for this change to the scoring method were never explained to the Complainant who contested the scores of the Regional Director who amended the Complainant’s scores after the Complainant had challenged some of his scores. I believe the Complainant was entitled to know why the scoring mechanism already agreed was subsequently changed.

The Complainant appealed the decision to dismiss him, again raising his serious concerns about the process that was employed including the scoring system. At appeal it was found that a number of the grounds raised by the Complainant were upheld and it was indicated that the decision to make him redundant should be overturned.

By this stage the Complainant had found alternative employment and had commenced this employment at the end of August 2020. If he accepted re-instatement he would have had to give up this employment and return to the Respondent and then re­ engage in a redundancy selection process.

The Complainant’s representative contends that in the instant case, the Respondent found that the decision to dismiss the Claimant was unfair. I find it very difficult to disagree with this.

The Complainant has cited section 6(7) of the Unfair Dismissals Acts 1977 – 2015 in relation to the reasonableness of the Respondent.

On this subject the Labour Court in Tolerance Technologies Limited V Foran (UDD 1638) upheld the claimant’s claim that he had been unfairly dismissed when the respondent made his position redundant. Although the Court accepted that there had been a genuine redundancy, the Court found that applying s.6(7) of the Unfair Dismissals Act 1977 to 2015, the conduct of the respondent in relation to the dismissal could not be held to have been reasonable. In reaching this conclusion, the Court noted that the claimant had not been adequately consulted and he was denied the opportunity to engage with the board of the respondent, as he had requested, in circumstances where he was not satisfied with the decision to terminate his employment.

I find that there are similarities between the case quoted above (Tolerance Technologies Limited V Foran (UDD 1638) and the instant case. In relation to the reasonableness (or lack of it) of the Respondent I would highlight the following:

·         There was no explanation given to the Complainant as to why the scoring system was changed.

·         The Respondent failed to issue the Complainant with written notice of redundancy in accordance with clause 17(1) of the Redundancy Payments Act.

·         In clause 2.8 of the Respondent submission it states, ‘the initial decision to make the Complainant’s role redundant was entirely impersonal to him’. Yet in an email dated 17th August from the Regional Director to the Complainant it states, “you have been selected for redundancy”.

·         The Respondent issued notice to the Complainant that he was being made redundant effectively from 17th August 2020. This email was received at 16.46 on 17th August 2020. After over 14 years’ service the Complainant was given 44 minutes notice that his employment was finished.

·         The Complainant was never granted an interview for the position of branch manager.

·         Both the independent HR consultants hired by the Respondent are quoted as saying “the two managers were marked partially on branch performance”. This would suggest that some other selection criteria were also considered, this was not disclosed at the hearing of the complaint.

These are not the steps an employer would take acting reasonably.

Having fully considered the evidence and submissions from both the Complainant and the Respondent I conclude that the complaint as presented under the Unfair Dismissals Act, 1977 is well founded.

Redress.

Section 7 of the Unfair Dismissals Act, 1977 (as amended) covers the subject of redress and reads as follows:

7.(1) Where an employee has been dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following (adjudication officer or the Labour Court), as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (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) as is just and equitable having regard to all the circumstances, or

(c) (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 Complainant commenced another position shortly after his departure from the Respondent. The salary paid to the Complainant in this new employment is somewhat less per annuum.

I have decided that the Respondent should pay four weeks salary for the dismissal plus the difference in salary for a period of 65 weeks. I calculate that this amounts to €3,381 compensation plus a loss of earnings of €11,191.09 and that the Respondent would make such payment within 42 days from the date of this decision.

I have decided that the Respondent should pay four weeks salary for the dismissal plus the difference in salary for a period of 65 weeks. I calculate that this amounts to €3,381 compensation plus a loss of earnings of €11,191.09 and that the Respondent would make such payment within 42 days from the date of this decision.

Unfair Dismissals Act, 1977.