UDD2226

FULL RECOMMENDATION

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

TYCO IRELAND LIMITED
(REPRESENTED BY MARY FAY B.L., INSTRUCTED BY EVERSHEDS SUTHERLAND)

- AND -

JUAN MIGUEL MARINO CAMARASA

DIVISION :

SUBJECT:
1. Appeal Of Adjudication Officer Decision No. ADJ-00029629, CA-00039516-001

BACKGROUND:
2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 29 July 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 1 February 2022. The following is the Determination of the Court:-



DETERMINATION:

This is an appeal by Mr Juan Miguel Marino Camarasa from a decision of an Adjudicator Officer (ADJ-00029629) dated 09 July 2021 under the Unfair Dismissals Act 1977 (“the Act”). The Adjudicator held that Mr Camarasa’s employment was validly terminated by reason of a bona fide redundancy, and that he was not unfairly dismissed.

A Notice of Appeal was received by the Labour Court on 29 July 2021 and a remote hearing conducted on 01 February 2022. For ease of reference the parties are referred to in this Determination using the same designation as at first instance. Hence, Mr Juan Miguel Marino Camarasa is referred to as “the Complainant” and Tyco Ireland Ltd is referred to as “the Respondent”.



Background

The Complainant was employed as “Lead User Experience Architect” with the Respondent based in Cork. As a result of a global restructuring, the Integrated Offerings unit where the Complainant worked was dismantled, and the Complainant’s role along with 11 other roles in Cork were made redundant.



Agreed facts

The Complainant in his written submission to the Court objected to the Adjudication Officer’s finding that at the WRC hearing he had accepted that his dismissal was for a genuine redundancy reason or that the selection process was fair.

Following questioning from the Court the Complainant clarified that he did not take issue with either the fact of redundancy or the selection process, but he did take issue with three aspects of the process - he was not given a certificate of redundancy or equivalent in accordance with section 18 of the Redundancy Payments Act 1967 and this meant he had no certainty as to his termination date; the only offers of alternative employment made to him related to positions outside of the company and he was denied the same ex-gratia terms as applied to other employees in previous redundancies.



Summary of Respondents’ position

The Respondent submitted that the Complainant’s employment was validly terminated by reason of a bone fide redundancy on 19 June 2020 and that he was not unfairly dismissed.

The Complainant attended a virtual global team meeting on 4 June 2020 where the company announced that the Integrated Offerings unit was to be dismantled, with some staff impacted by redundancy.

The Complainant was invited to an individual meeting the following day, the 5June, when he was advised that his role was redundant as a result of the restructuring and that his proposed termination date was 19 June 2020. He was asked to consider alternative available roles on the careers portal and advised that every effort would be made to retain him in the business.

He was informed of his statutory redundancy entitlements and offered enhanced ex gratia terms and outplacement support. Following the meeting he was sent an email noting the matters discussed. A further follow-up meeting with the Complainant was held on 8 June 2020.

The Respondent subsequently engaged with the Complainant’s solicitor on ex-gratia terms and those discussions continued beyond the termination date. While that engagement was ongoing the redundancy itself was progressed in accordance with the notified termination date of 19 June 2020. When the ex-gratia offer was rejected, the Complainant was advised by letter on 3 July 2020 that his statutory redundancy payment would be processed in the July payroll.

The Respondent accepts that the Complainant was not issued with a letter or certificate of redundancy. It submits that a failure to provide a final letter of redundancy does not invalidate a fair dismissal, as all relevant information was provided to him. The Respondent rejects any assertion that the Complainant was unaware of his termination date.

He was advised of the reasons why his role was redundant, as well as other essential details such as the termination date, and his statutory entitlements. A draft compromise agreement specified the same termination date of 19 June 2020.

The Complainant sent a group goodbye email to colleagues on 17 June 2020. He returned all company equipment and did not attend for work after 19 June 2020. He was in receipt of legal advice during this period. At the WRC hearing, when it became apparent to the Respondent that the Complainant’s main concern was seeking a composite letter of redundancy, this was provided to him without delay.

The Respondent submits that Complainant’s claim for unfair dismissal is grounded in his dissatisfaction with the ex-gratia package on offer, which is not a basis on which to render an otherwise fair dismissal to be unfair.

The Complainant was also dissatisfied with the lack of alternative roles within the organisation. The Respondent submits that it made every effort to find alternative employment for the Complainant. When the Complainant confirmed that he did not consider any of the available roles to be suitable for him, it tried to source external roles by referring him to external vacancies and by tagging and endorsing him for roles on LinkedIn.

The Respondent submits that it complied with its statutory obligations in terminating the Complainant’s employment and at all times acted fairly and reasonably.

Without prejudice to this position, the Respondent submits that if there was any irregularity in the procedure, such deficiencies were so minor in nature as to be covered by thede minimusrule.

Evidence of Ms Rebecca Walsh, Human Resources Manager

Ms Rebecca Walsh gave evidence that she attended a meeting on 05 June 2020 with the Complainant and his line manager, Ms Lam, when the Complainant was advised that his role was to be made redundant. He was taken through the process that would apply.

Ms Walsh told the Complainant that every effort would be made to find him an alternative role, and that she would send further details to him after the meeting. She invited him to come back to her with any questions. She confirmed his proposed redundancy date as 19 June 2020.

Under cross examination, Ms Walsh was asked by the Complainant why he was required to sign a document agreeing to a modification to his contract of employment for Covid related payroll deductions earlier that year but was not required to do the same when accepting a redundancy. Ms Walsh replied that this was to ensure that payroll knew which days Covid related deductions would apply.

She accepted that the Complainant did not sign a compromise agreement. She said that she was trying to formalise an agreement with the Complainant’s solicitor when the offer was rejected. When asked why the Complainant was kept on payroll after 19 June 2020, Ms Walsh said that payroll dates and termination dates are not the same.

Payroll is run monthly with pay day on the 19^thof the month and pay roll transactions are not processed daily. At the time, the company was still in discussions with the Complainant about processing his payment. Ms Walsh said that a letter dated 02 July, but sent on 03 July, confirmed that the Respondent would process his statutory redundancy entitlement. She confirmed that no letter of redundancy issued.

In response to questions from the Court, Ms Walsh confirmed that the redundancy date of the 19 June advised to the Complainant at the 05 June meeting was a proposed date, as there was a possibility that he might secure an alternative role within the organisation.

Summary of Complainant’s position

The Complainant takes issue with aspects of the redundancy process which he submits renders the dismissal unfair.

The Complainant contends that he was maintained in an undefined situation, where he was unsure of his final termination date. He disputes that he was informed on 5June 2020 that his role was to be made redundant, although he acknowledges that he does not remember that meeting very well. He could not accept a proposed compromise agreement subsequently sent to him, as it suggested that he was leaving the company by agreement rather than being made redundant.

In addition, the Complainant could not accept the restrictive covenant clause set out in the proposed agreement, and he wanted the same redundancy terms that were applied to other employees who had left the organisation before December 2019.

All alternative roles that were brought to his attention were external jobs, outside the organisation and no outplacement supports were provided to him. He did not accept the help offered by the Respondent with his legal fees, as he saw this as a conflict of interest, or with the outplacement services offered.

The Complainant submits that he requested a certificate of redundancy through his solicitor but did not receive one, and as a result was unsure of his final exit date. His Revenue status was still active in July and when he applied for social welfare, he was unclear about his employment status so recorded it as ‘unknown’.

On 29 June 2020, 10 days after the proposed termination date, negotiations were still ongoing about a compromise agreement. The Complainant questions why negotiations were ongoing if he was no longer an employee.

He attended a meeting on 9 July, three weeks after the proposed termination date, and was still active on Revenue at that time. He questions why when he checked his Revenue status he was recorded as active if he was no longer an employee. The complainant submits that he is entitled to a certificate of redundancy, which he needed to access social welfare benefits. In seeking a redundancy certificate, he was trying to assist the employer comply with the legal framework.

Evidence of Complainant

The Complaint gave evidence that an email he received inviting him to a meeting on 5 June 2020 did not explain that his role was to be made redundant. He received no documents in relation to this. He could not remember the details of the meeting or if redundancy was discussed.

Under cross examination, the Complainant accepted that he received emails from Ms Walsh, HR Manager, and Ms Lam, his line manager, following the meeting on 5 June 2020 which set out details of his statutory redundancy entitlement and ex gratia offer.

He accepted that he did not reply to these mails to advise that he was unaware that his role was redundant or to raise any queries about the redundancy process. The complainant confirmed that he had taken legal advice from a legal representative of his own choosing before the meeting on 8 June 2020.

The relevant Law

Section 6 of the Unfair Dismissals Act sets out the following:

6.—(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, 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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(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 insection 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) ofsection 7(2) of this Act.

Section 14 of the Act set out certain provision relating to notice to employees of procedure for, and grounds of, dismissal. Subsection 4 provides that:

(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal.

Deliberation

While the Complainant referred to alleged breaches of other employment enactments during the hearing, including the Redundancy Payments Acts and the Minimum Notice and Terms of Employment Acts, the Unfair Dismissals Act is not the appropriate statutory provision for the enforcement of terms set out in those employment enactments. The only matter for consideration by the Court in the within appeal is an appeal of a decision made under the Unfair Dismissals Acts.

In response to questions from the Court, the Complainant confirmed that that he does not take issue with the fact of redundancy or his selection for redundancy, but rather the process followed by his employer in implementing that redundancy. The Complainant contends that three aspects of the process administered by his employer render his dismissal unfair.

He was unsure of his final termination date as his employer failed to provide him with a redundancy certificate, he did not receive the same ex-gratia terms as applied to other employees in the past, and he was not offered alternative roles within the company.

The Complainant does not take issue with the timeline provided for consultation, which was two weeks minimum notice, as required under the Redundancy Payments Acts, 1967. The Complainant accepts that his role ceased to exist as a result of a restructure when his unit was disbanded, and he does not take issue with his selection for redundancy. He does not assert that the Respondent failed to follow an agreed redundancy process.

The issue for the Court is whether the three matters identified by the Complainant taint the process (either individually or collectively) such as to render the dismissal unfair.

Failure by the Respondent to provide the Complainant with a redundancy certificate

The Complainants submits that a failure on the part of the Respondent to issue a letter or certificate of redundancy renders his dismissal unfair. He submits that there was a lack of clarity around his termination date, as his employer was still engaging in discussions about his redundancy terms after the proposed redundancy date of 19 June 2020.

When discussions broke down and he had discontinued the services of his solicitor, he was unsure of his final exit date. He had requested a certificate of redundancy through his solicitor, which he had not received. When he checked his Revenue status it was still active on 3 July, and he did not know what his employment status was when applying to Social Welfare later that month.

The Respondent disputes that there was any ambiguity about the termination date of 19 June 2020. It submits that this date was advised to the Complainant on 5 June 2020, confirmed to him on 8 June 2020, and discussed at length with his solicitor until 2 July 2020.

During this period, the Complainant returned all of his company equipment, sent a group goodbye email to colleagues, and accepted that he ceased work on 19 June 2020. Having rejected the Company’s ex-gratia offer and dispensed with his solicitor’s services, the Complainant was advised by letter on 3 July 2020 that his statutory redundancy payment would be processed.

There was a follow up meeting on 10 July 2020. The Complainant remained “active” on payroll solely for the purposes of processing his final payments, which were paid to him in the July payroll. The Respondent accepts that the Complainant was not issued with a composite letter or certificate of redundancy, however, it submits that all relevant information was provided to him.

The question that the Court must answer is whether or not the lack of a composite letter or certificate of redundancy resulted in a lack of clarity around the Complainant’s termination date and renders the Complainant’s dismissal to be unfair.

In assessing the process followed by the Respondent, the Court notes that it is accepted that the Complainant was advised of a global restructure at a virtual meeting on 4 June 2020, and that the Integrated Offerings unit where the Complainant worked was to be dismantled, with some staff impacted by redundancy.

The Court accepts that the Complainant was subsequently notified of a proposed termination date of 19 June 2020 at a meeting held the following day, 5 June 2020. While the Complainant’s evidence was that he could not recall details of the meeting on 5 June 2020, Ms Walsh gave clear and cogent evidence that the complainant was verbally informed that his role was to be made redundant with effect from 19 June 2020.

An email to the Complainant of the same date set out his statutory redundancy entitlement and details of an ex-gratia payment. That correspondence was followed by a without prejudice compromise agreement sent to the Complainant, dated 8 June 2020, which stated “The employee agrees that notice of termination of their employment with the company has been validly served, and that their employment will end by reason of redundancy on 19th June 2020 (the “Termination date”)”.

Although the Complainant did not accept the ex-gratia terms contained in the draft compromise agreement, it clearly notified him that his employment would end by reason of redundancy on 19 June 2020.

The Complainant acknowledged that he sent a farewell email to colleagues on 17 June 2020 advising that his time with the company was coming to an end that Friday, the 19 June. On 19 June 2020 he emailed HR to confirm that he had left his equipment at reception.

The Court notes that the Complainant was in receipt of legal advice throughout this period.

Negotiations regarding an ex-gratia payment were ongoing with the Complainants’ solicitor on 19 June, the proposed termination date. When those negotiations fell through, the Complainant was advised by letter dated 2 July that his termination and statutory entitlements would be processed.

The date of termination of employment does not always correlate with the date a worker is removed from a payroll system and, in the Court’s view, the Respondent gave a reasonable explanation as to why the Complainant was maintained on the payroll system in July.

The Complainant made a request for information required to progress his Department of Social Welfare claim, and this information was provided to him promptly by the employer. The Complainant subsequently relied on a termination date of 19 June 2020 to lodge his claim of unfair dismissal to the Workplace Relations Commission.

In assessing the process followed by the Respondent, the Court is satisfied that the Complainant was notified of a proposed termination date of 19 June 2020 and that this date was confirmed to him subsequently.

Having regard to the facts of this case, the Court finds that there the Complainant was clearly informed about his termination date and was fully aware of that date. While it may have been good practice for the Respondent to issue a comprehensive letter setting out all relevant details relating to the termination of the Complainant’s employment, the Court finds that the failure of the Respondent to issue a composite certificate or letter of redundancy to him does not render his dismissal to be unfair.

Terms of ex-gratia offer

While the Complainant’s primary complaint relates to a lack of clarity around his termination date, he also contends that aspects of the redundancy process relating to ex-gratia terms and alternative roles rendered his dismissal unfair.

The Complainant submits that he did not receive the same ex-gratia terms as applied to other employees in the past.

In circumstances where there is no statutory entitlement to redundancy terms over and above those provided in the Redundancy Payments Acts, 1967, and the Complainant has no contractual entitlement to enhanced severance terms, the Court cannot find that the failure of the Respondent to apply ex-gratia terms as applied to other employees in the past is a basis to render the Complainant’s termination of employment unfair.

Failure to offer Complainant alternative roles within the company

The Complainant submits that he was not offered alternative roles within the company and instead was referred to external roles with other employers. At the hearing, the Complainant agreed that there were no suitable roles available to him within the company at the time of his redundancy.

The Court is of the view that efforts made by the Respondent to help the Complainant secure alternative employment outside of the company, after the Complainant had accepted that no suitable roles were available within the company at that time, were not unreasonable.

In circumstances where the Complainant was of the view that all the internal vacancies at the time were unsuitable it was a perfectly reasonable act on the part of the employer to see it could locate external work for the Complainant. The Complainant did not avail of the outplacement supports offered to him.

Having regard to all of the circumstances of this case, the Court is of the view that the matters identified by the Complainant did not render the dismissal to be unfair. As a result, the Court is of the view that the termination of the Complainant’s employment by reason of redundancy was not unfair.

On the basis of the foregoing, the Court finds that the complaint of unfair dismissal contrary to the Act of 1977 is not well-founded. Accordingly, the decision of the Adjudication Officer is upheld.

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.