ADJ-00031165

Complainant

Respondent

Parties

Thomas  Anglim

Coachbury Taverns Limited   T/A Porterhouse

Representatives

Richard Grogan, Richard Grogan & Associates

Loughlin Deegan, ByrneWallace

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-00041528-001

10/12/2020

The Complainant started employment with the Respondent on 9 January 2001 as Assistant

Head Brewer. He worked 30 hours per week and was paid a gross weekly wage of €724. His employment terminated by reason of redundancy on 2nd October 2020. He is asserting that his dismissal was unfair.

The Complainant stated that the Respondent did not follow a detailed workflow planning exercise and that there was no consideration of other jobs for the Complainant within the company. It was also stated that there was no selection process for available roles nor was there any evidence of a detailed redundancy consultation process.

The Respondent is the company within the Porterhouse Group that brews the Group’s beers for sale both (a) in licensed premises owned by the Group and (b) through other sales and distribution channels. 

Like most enterprises in its sector, the Group was extremely hard-hit by the COVID-19

Crisis, which a range of measures to be taken in order to survive the crisis. These measures included: 

(a) availing of State financial supports including the Temporary Wage Subsidy Scheme, the

Employee Wage Subsidy Scheme, the COVID Restrictions Support Scheme and a range of

other grants and business supports;

(b) putting many staff on protracted periods of lay-off and short-time;

(c) applying a 50% salary reduction to senior staff members who were not on lay-off or short time;

(d) non-replacement of staff who resigned (e.g. to return to their home countries); and

(e) redundancies. 

On 19 March 2020, along with hundreds of other employees of the Group around the same

time, the Complainant was placed on lay-off or furlough due to COVID-19. Only about 9 or 10 employees of the Group were not laid off at this time. 

As the COVID-19 crisis continued, the Respondent engaged in a comprehensive

workforce planning process in which it assessed the workforce needs. This process included a series of planning meeting that occurred on and about 15 May 2020. One of the workforce planning meetings related to the Complainant. Management discussed options such as short time, lay-off and consideration of positions that may be at risk of redundancy arising from the enormous reduction in demand for the Respondent’s products. The Complainant’s role was one among several deemed to be at risk of redundancy. 

On 2 June 2020, a Zoom meeting was organised with the Complainant to check in and to update him on current brewery situation. On 4 June 2020, the Complainant was sent an email outlining the main points discussed on the Zoom call with the Head Brewer, including the impact on the brewery of the COVID-19 pandemic and the reduction in the expected number of brews. 

On 17 July 2020, the Complainant was invited to a meeting via Zoom video call scheduled for 21 July 2020 to discuss the impact the COVID-19 pandemic was having on his role and the subsequent closure of majority of bars and restaurants. On 21 July 2020, a meeting via Zoom video call took place with the Complainant, the Head Brewer, a Director Mr X and the HR Manager in attendance. The Head Brewer explained that things had not improved since the last time they had spoken and a difficult situation arose to review current requirements for the brewery. The HR Manager advised that due to cost saving measures which were vital for the survival of the business, the Complainant’s position as Assistant Head Brewer was at risk of redundancy. A letter to confirm same was to be sent in due course. The HR Manager encouraged the Complainant to “put forward his own views on how to avoidpossible redundancy which can be discussed in the next meeting”. 

On 22 July 2020, the Complainant received notes from the meeting that took place the day

before. On the same day, he also received formal notification that his role as Assistant Head

Brewer was at risk of redundancy. The Respondent provided considerable detail to him about the extent to which it had been affected by the COVID-19 crisis. 

In order to consult and listen to Complainant’s views regarding alternative roles within the company a meeting with the Head Brewer, the Director Mr X and the HR Manager in attendance was scheduled for 29 July 2020. The Complainant was invited to put forward his views and suggestions, in writing that could be discussed at the meeting scheduled for 29 July 2020. The Complainant was advised of his right to representation. 

On 29 July 2020, the consultation meeting took place between the Complainant, the Head Brewer, the Director Mr X and the HR Manager in attendance. The Complainant suggested in order to avoid redundancy he could “work less days or happy to stay on layoff until things pick up again”. The Director reassured the Complainant his suggestions would be considered, and a decision would be made. 

On 7 August 2020, the Complainant received notification from the Head Brewer that the

Complainant’s role as Assistant Head Brewer was to be made redundant and he was advised of his right to appeal. The Complainant did not to avail of his right to appeal. The Complainant’s notice of termination of his employment expired on 2 October 2020. 

Total headcount in the Porterhouse Group declined by about 160 (out of about 400) during the first year of the COVID-19 crisis. Of these 160, 20 employees of the Group were made

redundant during the crisis. The Complainant was one the employees who were made

redundant. His role, Assistant Head Brewer, became redundant because of the precipitous drop in the amount of beer that the Respondent could brew and sell during the crisis. The

Complainant’s dismissal followed a detailed consultation process with the Complainant in which no suitable alternative role could be found for him. The Complainant was afforded the right to fair procedures at all times during this process.

The Law

Section 6 of the Unfair Dismissal Act states inter alia

 (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.…

(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 as amended by the Industrial Relations Act 1990, 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 7(2) of this Act.”

Section 7 of the Redundancy Payments Act, 1967, as amended, states:

“(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.”

Findings

While the Respondent’s asserted that the redundancy of the Complainant’s position was in accordance with Section 7 (2) above, it is also clear from a review of the relevant case law that where redundancy is presented as the reason for termination of employment, it must not only meet the definition of the term but it must also be shown that the Complainant was fairly dismissed.

In the seminal case of Panisi v JVC Europe Ltd. [2012] ELR 70, Charleton J held:

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

 In Panisi it was also held:

“It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be examined….”

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854:

“The Court accepts that the Respondent was entitled to restructure its business and reduce its workforce if necessary. While the Court accepts that the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.”

The Labour Court also held in the case of Student Union Commercial Services v Traynor UDD1726  

“In the instant case, the Court is satisfied that the Respondent did follow a consultation process with the Complainant to inform him that his role in the Company was being considered for redundancy. The Complainant was given the opportunity to make suggestions as to why he should be retained and on alternatives that might be considered. However, the Court is not satisfied that the Respondent has demonstrated that it gave due consideration to the suggestions made and/or to the possibility of alternative employment options that may be available. The Court notes that at the consultation meeting held on 13th January 2016, reference was made to consideration of options and/or suggestions being put forward by both sides. At the consultation meeting of 19th January 2016, the Respondent explained to the Complainant that a number of alternatives were under consideration and that the most suitable possible alternatives was redeployment, which may even entail different duties, pay rates, shift patterns and responsibilities. By 27th January 2016 the Complainant was informed that no suitable alternative position was available and he was being made redundant. The Court notes that the Complainant had almost twelve years’ service. The Respondent had a number of business units and had fluctuating numbers of staff employed. The Court was presented with no information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/suggestions. The Court can accept that had such an exercise being carried out it may not have identified any alternative positions suitable to the Complainant, however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act, the dismissal of the Complainant was unfair.”

While I noted the Complainant’s representative’s assertion that alternative roles should have been examined by the Respondent which would have involved dismissing other employees with a view to retaining the Complainant and that this was disputed by the Respondent’s representative, it is clear from the three above mentioned decisions that other options and alternatives to redundancy (my emphasis) should have been considered. 

Bearing the consistent theme of these three decisions in mind therefore, I must examine in the first instance whether the option presented by the Complainant himself, namely to retain him on temporary lay-off was or should have been considered by the Respondent. Specifically, I note that this was the option presented by the Complainant at the meeting of 29th July and that he was reassured that this would be considered by the Respondent. 

I also noted however that, despite this assurance having been given, there was no evidence presented to suggest that this alternative was fully explored. Moreover, I noted that, Mr X, one of the Respondent’s Directors stated, in sworn evidence, that it would be better for the Complainant if he was dismissed by reasons of redundancy rather than being retained on temporary lay - off so that he could get on with his life. This is despite the Complainant having advised on 29th July, as recorded in the Respondent’s notes of the meeting, that he would be “happy to stay on layoff until things pick up again”

While I recognise the dire situation that the Respondent was in, given the industry in which it operated during a pandemic, I also noted from their written submission that they had availed of the State’s financial supports and no evidence was provided as to why a final decision to dismiss the Complainant was made on 7th August 2020, less than 5 months after the lockdown caused by the pandemic. Specifically, there was no evidence presented either to suggest that business would not pick up at some stage in the foreseeable future or that there were widespread redundancies across other companies in the sector at the time.

Finally, I note that the option of retaining the Complainant on temporary lay off was the only alternative presented by him and that the Respondent presented no evidence of any concrete options, similar to the Respondent in the matter of Student Union Commercial Services v Traynor UDD1726. Specifically, in the instant case, I would have expected that other workers with a similar skillset to the Complainant would have been spoken to by the Respondent and asked if they wanted to consider voluntary redundancy or perhaps reduce their hours. While I also noted the Respondent’s assertion that all of the other workers had different skill sets to the Complainant, there was no evidence presented to show that any analysis was carried out or that the workers were spoken to about the skills they possessed.

The failure to consider the option presented by the Complainant and the absence of any concrete evidence to suggest that the Respondent had meaningfully explored other options leads me to find that the consultation process was wholly inadequate and was essentially just a tick box exercise rather than a genuine and considered examination of alternatives as highlighted in the case law, referred to above.

Bearing all of the above points in mind, I find that the Complainant was unfairly dismissed.  

THE LAW

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, 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,

(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—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(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,

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate remedy in line with section 7 above.

Given that he has secured alternative work elsewhere and his preference for compensation as a remedy, I consider that this is the appropriate form of redress in this case.

I note firstly the Respondent’s suggestion that the Complainant should have commenced looking for work on 7th August 2020, namely the date on which he was given notice of the termination of his employment, in order to mitigate his financial loss.

As highlighted above however, s 7 (1) (c) (i) of the Acts states that I may award “any financial loss attributable to the dismissal” and s.1 of the Act states that “dismissal”, in relation to an employee, means—

(a)   the termination by his employer of the employee’s contract of employment with the employer

I have therefore confined the time in which the Complainant was expected to mitigate his financial loss to the period between the date of termination and when he started worked elsewhere, namely October 2020 and August 2021.

While section 7 (1) (c) (i) of the Acts states that I may award “any financial loss attributable to the dismissal”, I must also have regard to s. 7 (2) (b) or (c) highlighted above in making my decision.

As highlighted above in my analysis, I have found that the alternative to redundancy presented by the Complainant was not considered by the Respondent, no other options were proposed, the redundancy consultation was essentially a tick box exercise, and in accordance with s. 7 (2) (b) above therefore, have had regard to the conduct of the Respondent in the calculation of my award.

Although the Complainant did not contribute to the dismissal, he is required in line with s. 7 (2) (c) above to mitigate his financial loss. While I noted that the Complainant only applied for similar roles for the first number of months after he had been dismissed, I must also recognise that he had worked in the same position for almost 20 years and it was not entirely unreasonable that he wanted to restrict himself to a similar role although I did note that the assertion made by the Respondent’s representative that he was willing to work in alternative roles within the company and should therefore have been looking for such roles in other sectors.

I have also noted the case law, including in Sheehan v. Continental Administration Co. Ltd., UD 858/199, where it states that ‘time a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’. While the Complainant could not be said to have demonstrated that he employed part of every single work day to applying for work between October 2020 and August 2021, and I have taken account of this, I must also recognise that he has demonstrated some endeavour in mitigating his losses by seeking to learn new skills and has now retrained and is in a new career.

Taking everything into account, I find that the Respondent should now pay a sum of €15,200 in compensation to the Complainant in respect of the unfair dismissal. For the avoidance of doubt, this amount is additional to what was paid to him when he was dismissed.