Complainant

Respondent

Parties

Johnny  Beggs

Skerries Harps Gaa Club

Representatives

  self

 Mr Paul Donnelly Chair and executive member Anthony Weldon

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046777-001

21/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00046777-002

21/10/2021

The Complainant stated in his form that his employment commenced on the 11th of March 2013.

He submits that his employment was terminated on the 25th of June 2021 and while the Employer stated the reason was for redundancy; the employee alleges that his selection for redundancy was unfair.

The Complainant was appointed as a Club Games Coach on or about the 1st of March 2017.

On or about 5th of May 2021 the Complainant was informed that his role was at risk arising from financial difficulties created by Covid.

A consultation meeting took place on the 17th of May 2021 in attendance was the Chair and executive member Anthony Weldon. These two members were appointed by the club committee to oversee the review and act as the primary contacts during the consultation process.

A further consultation meeting was held on the 27th of May 2021 and the Club through their nominees informed the Complainant that his role was at risk based on the facts of financial pressures; limited scope and influence at Primary Schools to directly coach; an overlap with another position funded by HQ and the strategic review to return to a greater emphasis on voluntary coaching as opposed to a dedicated role in keeping with the ethos of the Club.

The Club stated that it would look for alternatives other than redundancy.

On the 24th of June 2021 the Club wrote to the Complainant to state that his role would be made redundant based on the combined factors of financial pressures and the diminished need for the role of club coach. As no alternative role could be identified the Club regretted that it would be necessary to terminate his employment.

The Club calculated redundancy as follows:

·       Commenced employment on the 1st of March 2017.

·       Date of notice 24th of June 2021.

·       Date of termination 25th of June 2021.

The Complainant was paid 2 weeks per year of service plus one bonus week for all reckonable service and was paid any remaining statutory notice outstanding.

The parties gave sworn evidence and were provided with the opportunity to cross examine.

CA-00046777-001 Unfair Dismissal:

The Complainant stated that the selection process was unfair while a redundancy may have been required; how, he was selected over others was not fair or reasonable.

CA-0004677-002 Redundancy Calculation

The Complainant stated that he worked for the Club since 2013 and his redundancy payment should have bee based on 8 years employment and not 4 years.

CA-00046777-001 Unfair Dismissal:

The Respondent stated that a genuine redundancy situation arose, and that the selection process was fair and involved a robust consultation process.

CA-0004677-002 Redundancy Calculation

It is the respondent’s position that all monies due to the Complainant have been paid in line with legislation and that his employment start date was the 1st of March of 2017 and not the 11th of March 2013

CA-00046777-001 Unfair Dismissal:

In correspondence to the Respondent dated 27th of May 2022 at point 7 the Complainant stated:

In the event a decision remains to make my role redundant, in light of my time and experience, it would be appropriate to consider me for other work I am experienced in such as bar work (I have 10 years Bar experience) and similarly I have suitable experience for most of the Caretaking duties which are outsourced. These duties combined with my coaching work (if it be reduced) renders me as an extremely suitable candidate to fulfil these roles, and where I would be willing to combine the duties of Coaching/Bar/ Caretaking

The employer stated that the Complainant’s role was unique and the fact that 2 other personnel are engaged in bar work and caretaking was not a relevant consideration when addressing the request by the Complainant to be considered for these positions.

The Employer has every right to re-organise how work is done either based on the need to be more efficient or for some other reason such as the requirement to reduce costs. However, the essential characteristic of redundancy is that it is an impersonal decision:

At section 7 of the Redundancy Payment Act 1967 as amended it 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

However, section 7 of the Unfair Dismissals Act 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 F48[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

In O’Rourke v Valcourt Limited [2015] ELR 209, while criticising procedural failings in the process; however, it was decided that did not negate the fact that a genuine redundancy existed, and that the selection was fair.

Redmond on Dismissal Law 3rd Ed, Bloomsbury, 2017, referenced A Hotel Manager v A Hotel and Spa Resort Adj-00015257:

“Thus, even where an employer can be criticised for some elements of its interactions 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 can be argued that while many procedural accommodations are desirable; none are absolute (Nigrell v Graham UD/690/2013).

 It is clear on the evidence that the decision maker did not consider the Complainant’s request to be redeployed into bar work or caretaking duties. That process in turn may have identified someone else to be made redundant, objectively, and fairly.  The consideration of other alternatives to redundancy was not seriously explored having regard to the fact that the Complainant had an involvement with the Club for 20 years; had relatively long service with the Club when compared to the other personnel and his ability to carry out bar work and caretaking duties was not questioned.  When combined with the failure to meaningfully consult  with the employee, the Complainant contends that means the process is flawed and fatal having regard to the legal test as set out in the Act at s 6(7).

The Club could have placed the complainant on lay off or reduced his salary and have availed of Government subsidy schemes prior to deciding if they had to make him redundant.

The onus is on the employer to demonstrate that they acted fairly and reasonably. The employer had the right to reorganise and reduce headcount. However, the employer must also demonstrate that they acted reasonably in choosing this employee when other personnel were retained by the Club for bar work and caretaking duties.

 What is crucial is to assess whether the decision maker at the time of making the decision applied objective and fair criteria?

The presumption of unfairness must be rebutted by the employer and while they have demonstrated that the complainant’s role was no longer required; they have not demonstrated that they acted reasonably before they made him redundant. The case law does demonstrate that the decision in the round must be looked at. However, that is also based on the presumption that the decision is unfair until rebutted and the requirement to demonstrate that the employer acted reasonably. The employer has provided no evidence of assessing any other alternative other than to make this employee redundant. While the employer stated that it had; that is not borne out by the facts that they ignored the request of the Complainant to be considered for bar work and caretaker work.

A decision to make an employee redundant must be impersonal; limiting the review to one role against the backdrop of other personnel being retained is not objective and fair where the reasons for that decision are not persuasive. As Charleton J determined in JVC Europe Ltd v Jerome Ponisi [2012] 23 E.L.R. 70:

2. A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended ( “the Act of 1977” ), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer. Sections 6(1) and (2) of that Act, in their amended form, provide:

In Cronin v RPS Group, Tallaght UD 2348/2009 and cited in the Arthur Cox yearbook 2011 the tribunal determined that:

The EAT accepted that a genuine redundancy situation existed but concluded that the employer did not act reasonably when it came to selecting the claimant for redundancy. It cited the following grounds for upholding the claim:

failure to advise the claimant of the criteria to be applied for redundancy;

failure to give her the opportunity to make representations on her own behalf in respect of those criteria;

failure to provide an appeal mechanism for the claimant;

the company adhered rigidly to a system of selection that did not provide for any consideration of redeployment;

failure to have regard to the claimant’s length of service.

The Club would appear to have met some of the criteria of what would constitute a fair process; however, essentially the selection process was not fair or reasonable as no adequate consultation took place. The employee had little or no input into the selection criteria and while the nominees always relayed back to the deciding committee what the Complainant said and sought; there was no active engagement with his suggestions. The answer was always apologetically no without detailing why he was to be picked over others.

In this case while a genuine redundancy situation existed the selectin process was rigid; was devoid of meaningful consultation; failed to have regard to the complainant’s length of service, his previous relevant experience that could have allowed him to be redeployed to bar work and/or caretaking duties. The context for redundancy is valid; however, the execution of that decision was unfair

 All those factors detailed in Cronin when considered may not have been sufficient to retain the employee; however, the test to be applied is how reasonable was the conduct of the employer when deciding that this employee should be made redundant over others. In the absence of any proof that alternatives were meaningfully considered and combined with the fact that the process was rigid; provided no specific reasons why redeployment would not take place; the selection process must be deemed to be unfair. For these reasons I determine that the complainant was unfairly dismissed.

In in JVC Europe Ltd v Jerome Ponisi [2012] 23 E.L.R. 70 Charleton J. stated that Unfair Dismissals Act required Financial Loss to be determined as follows:

27. This section clarifies the consideration that is to be given to compensation for unfair dismissal. Payments under social welfare and income tax legislation are to be disregarded. In assessing compensation, the court should have regard to the implications for dismissal. My task is to assess the financial damage which the dismissal has brought about and then to place the measure of that damage against the maximum amount of compensation that is available. In the event that the compensation that is available, amounting to 104 weeks remuneration, is less than that sum, then that is the measure of damages. Where the quantum of damage is more, then the jurisdiction is limited to that maximum and the amount of damages must thus be reduced to that maximum sum. Where the measure of damages on dismissal is more than the maximum but contributory fault is found in respect of the dismissal against the employee, the reduction is on the totality of those damages, and not on the maximum award. If the result is to reduce compensation within the maximum award, that sum is appropriate. Where the reduction in total damages for contributory fault puts the damages above the maximum award, then the maximum award is the correct measure of compensation for unfair dismissal.

The Unfair Dismissals Act1977 as amended also states that the following should be excluded:

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

In relation to Redundancy Payments the Unfair Dismissals Act as amended states:

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.

In addition to his oral evidence the Complainant provided documentary evidence concerning his current employment status:

Dear Adam, With reference to your recent letter dated 16th of September 2022, please find attached documents relating to recent job applications that I recently applied for and details of a return to work scheme-SEETEC that I am currently enrolled in. I am still currently unemployed and still in receipt of the Jobseekers allowance. Should you require any further information do not hesitate to contact me. Best regards Johnny Beggs

The Complainant is currently in receipt of the Job Seekers Benefit. While it is true that the current employment market is buoyant a mature employee can experience difficulties in obtaining employment. However, the current low unemployment level it is a factor that I will take account of in determining financial loss.

Dismissal occurred in June 2021 and the Complainant continues to be unemployed. While the maximum compensation is 2 years pay; having regard to the current low unemployment level I consider 12 months loss to be reasonable in addition to the Redundancy payment made as he is entitled to be compensated for the loss of his redundancy rights.

I determine that the Complainant was unfairly dismissed and award 52 weeks x €501.60 Gross Weekly Wage=€26,083 in addition to the redundancy payment made.

The employee has stated that since the relationship between the parties is clearly difficult and strained because of the process, he would seek compensation. In these circumstances while I considered re-instatement, I find that it is not appropriate having regard to the fact that the relationship between the parties in a relatively small organisation would be problematic if the Complainant was re-instated. 

CA-00046777-002

A complaint for Redundancy is incompatible with a claim for Unfair Dismissal; however, this complaint relates to the alleged miscalculation of redundancy entitlement based on the commencement of employment. Any award of compensation for Unfair Dismissal would incorporate loss of statutory rights. This decision addresses whether the date of employment for the calculation of the value of financial loss of a statutory right should have included community employment service at the Club.

The Complainant was training on a Community Unemployment Scheme at the Club, and he was in receipt of a top up payment. He claims that his redundancy payment should be calculated on a start date of 11th of March 2013. The Club denies that any top up payment was made arising from any employment relationship. The Complainant initially was offered a fixed term employment contract that commenced on the 1st of March 2017 and on the expiry of that term was placed on a contract of indefinite duration. No insurable employment relationship existed until the 1st of March of 2017.

The Redundancy Payments Act 1967 as amended requires that the employee to avail of a Redundancy Payment be in insurable employment:

4.— (1) Subject to this section and to section 47, this Act applies to—

(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005,

I find against the Complainant and his appeal of the Employer’s decision concerning the commencement of employment on the 11th of March 2013 as that period of engagement with the scheme was not as an employee which was insurable for all benefits under the Social Welfare Consolidation Act 2005. This Complaint is not well founded.

CA-00046777-001 Unfair Dismissal:

I determine that the Complainant was Unfairly Dismissed as the selection process that determined who would be made redundant was rigid, narrow, and failed to consider redeployment. I don’t find that the consultation process was objective and fair.

Dismissal occurred in June 2021 and the Complainant continues to be unemployed, is on Job Seekers benefit and actively seeks to be employed. While the maximum compensation is 2 years pay; having regard to low unemployment levels I consider 12 months loss to be reasonable. In arriving at this award, I have had regard to the circumstances of this case where the employee actively engaged in the consultation process; however, the employer failed to genuinely engage with him and his alternatives. I exclude payments made under Redundancy as the law provides that financial loss should take account of the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967-1973. 

I determine that the Complainant was unfairly dismissed and award 52 weeks x €501.60 Gross Weekly Wage=€26,083 arising from being unfairly dismissed to be paid in addition to Redundancy already paid.

CA-00004777-002

The Redundancy Payments Act 1967 as amended requires that the employee to avail of a Redundancy Payment be in insurable employment:

4.— (1) Subject to this section and to section 47, this Act applies to—

(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005,

I find against the Complainant and his appeal of the Employer’s decision concerning the commencement of employment on the 11th of March 2013 as that period of engagement with the scheme was not as an employee which was insurable for all benefits under the Social Welfare Consolidation Act 2005. The Complainant cannot maintain an action for Redundancy and Unfair Dismissal as they are mutually exclusive. However, financial loss determined under the Unfair Dismissal Act does provide that loss of rights under Redundancy Acts can be incorporated into the calculation of financial loss as set out by the courts.  This Complaint is not well founded.

Unfair Dismissal-Redundancy Calculation