Complainant

Respondent

Parties

Sean  Dillon

Royal National Lifeboat Institution (RNLI)

Representatives

 Self-Represented

The Respondent did not attend and was not represented at the hearing.

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-00052521-001

01/09/2022

On 08/01/2018 the Complainant commenced working in his role in with the Respondent.  The Respondent is the largest charity that saves lives at sea around the coasts of the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man, as well as one some independent waterways.  The Complainant’s title was Lifesaving Manager Ireland.  The Complainant’s area of responsibility comprised the island of Ireland together with the Isle of Man initially.  The Isle of Man subsequently fell under the remit of his colleague Lifesaving Manager Wales.  The Complainant’s salary was typically €7,300.00 per month (gross).  The Complainant alleges he was unfairly dismissed by reason of unfair selection for redundancy. 

The Complainant submitted comprehensive documentation in advance of the hearing between the lodging of the complaint and up to the date of the hearing.  The Complainant provided a detailed statement of the specific details of his complaint on the WRC complaint form.  He provided a very helpful complaint timeline.  I have carefully reviewed all the Complainant’s submissions and I have extrapolated the core issues as summarised below. 

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent. 

The events leading to the Complainant’s dismissal were set out in the WRC complaint form and in his written submissions to the WRC.  Further detail was provided by the Complainant in evidence during hearing. 

Employment History:

The Complainant commenced in his role with the Respondent in 2018.  The title of his role was Lifesaving Manager Ireland and there were five colleagues in similar roles across the Respondent organisation.  There was a Lifesaving Manager in Scotland, Wales and England had three Lifesaving Managers as it was divided into three regions, North East, South West and South East respectively.  The Complainant at hearing described his role as autonomous but not independent in what he defined as a UK focused organisation.  A previous iteration of his job title was that of Divisional Operations Manager. 

Appointment of new CEO:

The Respondent appointed a new CEO, Mr Mark Dowie, (hereafter MD) on or about two years after the Complainant commenced in his role.  The Complainant submits MD indicated an intention to elevate the standing of the Lifesaving Manager role in the organisation.  The Complainant submits MD wanted to address the dysfunctional nature of his senior management structure and the inability of HQ to support the country regions.   Among MD’s goals was the creation of a leaner, flatter structure at the top as opposed to the current (at that time) hierarchical bureaucratic structure. 

MD’s Devolution Strategy:

MD aspired to devolve more operational autonomy from the Respondent HQ in Poole to the country regions.  To this end MD directed the six Lifesaving Managers included among which is the Complainant to design and apply a revised structure which he as CEO would implement in order to set in place a framework upon which the country regions could operate in a more effective manner without the bottleneck of the existing HQ structure.  During hearing the Complainant used the analogy of “turkeys voting for Christmas” to describe little did they realise at that time the potential outcome of designing a new structure and the ensuing ramifications for them.  This task was completed successfully by the Lifesaving Managers and passed to MD to implement throughout the organisation. 

As part of his strategy MD had decided the title of the role should reflect this devolution from the centre to the regions.   Accordingly, the title would change from Lifesaving Manager to that of Head of Region.  In the case of the Complainant that would see Lifesaving Manager Ireland becoming Head of Region Ireland.  The Lifesaving Managers commenced to put into effect the new ways of operating which the Complainant described in direct evidence as Phase 1.   

With the advent of Covid for a period of two years the regions had to operate even more autonomously particularly in the context of the different public health measures in the regions.  The Complainant submits it was widely acknowledged by the Board, Trustees and MD that the regions were hugely successful, especially Ireland given it was entirely independent of the UK Public Health Structures.  The Complainant submits that when it came what he describes as Phase 2 which was the formal implementation of the revised structure, MD disappeared from the process and left the technicalities to the HR Team having left the Lifesaving Managers to operate as Head of Regions throughout Covid without properly affirming the enhanced elevated status of the role.  

The Complainant submits as it got closer to launching the revised structure MD seemed to back off from the original idea that the six would automatically assume the new title and MD began to pitch the idea to them that it would be an open interview competition and the six would have to “earn the right to title”.  The Complainant submits there was precedent in the organisation of situations where there is little change to a role and the incumbents simply stepped across into the role.  The Complainant submits MD informed him HR had directed that it should be done this way (interview process).

The Complainant submits MD assured him he had nothing to fear and if indeed there would be an open competition that he, the Complainant, was “lengths ahead in the field”.  The Complainant submits he raised some concerns with MD about some of the recruitment practices in the Respondent organisation and given that MD’s strategy to devolve to the regions had many detractors in the Respondent HQ he, the Complainant, feared all six would be very exposed in an interview situation.  MD assured the Complainant he “would be all over any interview situation” and he would “make damn sure everything was transparent”.  The Complainant submits MD advised him to start thinking about how he would sell himself in an interview for the Head of Region Ireland job.

The Complainant submits the combined collective position of the Lifesaving Manager cohort at that time was that it would all depend on the new role profile and if the role were substantially different some form of internal interview process might be reasonable but if the roles were identical or almost identical either in design or intent and they were already performing at the required level, then it would be completely unfair to put them “at risk” in the context of the planned wider organisational restructuring. 

Consultation Process:

The Complainant submits a process then commenced that placed all Lifesaving Managers “at risk.” The Complainant provided the WRC with a copy the twenty-nine-page Consultation Document which was shared at a briefing meeting on 06/09/2021, the commencement date of the consultation process.  The purpose of the consultation process is set out by the Respondent as “to engage with those affected by re-alignment activity to consider any options for avoiding compulsory redundancy and to inform them of the business case for change.”  There is an overview of the proposed planned changes that includes the introduction of 6 new Head of Region roles “proposed to replace the existing 6 X Lifesaving Manager roles.”   

The Complainant submits it immediately became apparent on sight of the proposed role profile document for the new Head of Region role that it was almost identical to the Lifesaving Manager role which they were currently held but were now considered by the Respondent to be “at risk” roles.  The Lifesaving Managers and others not involved in the process undertook a comprehensive comparison of the two role profiles.   The Complainant submits those who reviewed the role profiles were hard pressed to see any real differences between the two roles. 

There was one adjustment to the Irish head of region role profile versus any other region which stated, “Ireland and related regulatory responsibilities would move to Head of Region – Ireland”.  The Complainant submits in hindsight this one adjustment was of immense favour to the person appointed to the Ireland role when they appealed suitable alternative employment and were secretly interviewed for the post during the consultation process. 

The Complainant and his Lifesaving Manager colleagues throughout the consultation process argued that the two roles were identical and constantly requested the Respondent to demonstrate the differences.  The Complainant submits they were informed by the Respondent that this was the “right thing to do” and they would have to “earn the right to title” rather than be given the roles.   

The Complainant received an email confirmation formally placing him “at risk” on 09/09/21 following a one-to-one meeting with Operations Director Mr John Payne (hereafter JP) and an HR Representative.  The Complainant submits he forwarded a number of questions seeking clarification and he experienced delays in getting satisfactory responses throughout the process.  The Complainant submits despite raising a number of questions repeatedly they refused to answer them in a clear transparent manner. 

The Complainant submitted his first round of questions on 16/09/21.  He received an acknowledgement and was advised he would receive the responses by 22/09/21. He received an update from HR on 21/09/21 advising the answers to his questions would not now be provided until   28/09/21.  The Complainant was not provided with the answers to his questions on 28/09/21.  On 30/09/21 the Complainant was due to have a one-to-one with JP, but he cancelled it on the basis such a meeting was pointless without answers to the questions he had raised.  The Complainant submits he finally received answers to his questions on 01/10/21 without any of the detail he had requested, and he had to resubmit several key queries where the detail was lacking, or the detail provided was inconsistent.  The Complainant had a one-to-one with JP and HR on 04/10/21. 

The Complainant submits he had more questions and queries for them on 04/10/21 and he complained about the quality of the answers to his original queries.  He was directed to send those complaints together with the questions raised verbally at the meeting to HR.  JP directed the HR representative at the meeting to ensure answers were provided by a deadline of 07/10/2021.  The HR representative assigned to the Complainant was on sick leave, but he had not been advised of this and there was a replacement HR representative present.  The Complainant duly forwarded an email to his new HR representative and to JP as requested following this meeting.  There were no answers provided by the Respondent to the Complainant by the 07/10/2021 deadline. 

On 11/10/21 the Lifesaving Managers group sent a counter proposal to JP and to HR.  The Complainant sent a chaser email on 12/10/21 seeking answers to the questions he had raised on 04/10/21 verbally and by email.  HR responded they would revert as soon as they could, but no revised deadline date was provided.  There was a meeting on 14/10/21 between all “at risk” country managers, JP and the Head of HR.  On the morning of that meeting the Complainant received an email from HR advising that all his questions would be answered at that meeting.  The Complainant responded seeking written answers to all his questions regardless of the planned meeting.  There was a Q & A session at the meeting where the Complainant submits more questions were raised. 

The 15/10/21 was the formal end of the consultation process and the Complainant submits the Lifesaving Managers group had requested that the consultation process be extended but heard nothing back from the Respondent about whether the consultation process was open or closed.  On the 18/10/21 there was an email from HR advising the consultation process had ended at 23.59 on 15/10/21.  The Complainant submits he finally received a response to his second round of queries, due by deadline of 07/10/21 and received by him on what was the final day of consultation. 

The Complainant discovers during his “end of his consultation and notice meeting” on 02/11/2021 with JP and HR that the Ireland job might be gone.  The Complainant was made aware at that meeting that a colleague under suitable alternative employment (SAE) might have the Ireland job.  The Complainant submits during his first one-to-one he had asked JP if the Ireland job was still available, and he was explicitly told it was.  The Complainant received his formal letters from the notice meeting on 04/11/2021 and he was formally made redundant from 05/11/21.  The notice period was extended from one month to four.  The Complainant’s employment terminated on 05/03/2022. 

Redundancy Appeal:

The Complainant submits he moved his appeal focus beyond the process itself despite all the difficulties experienced including delayed responses to his questions and the concern he raised about a very specific tweak to the Ireland job which subsequently proved to be enormously beneficial to the other senior manager that got slotted into the Ireland role.  He submits he flagged serious governance concerns about this.  The Complainant submits he moved his appeal focus directly into seeking the opportunity to interview for the Head of Region Ireland job as he had been promised he would have the opportunity to do so by MD.  He submits that if this meant he would have to go up against the intended slot (person appointed) then so be it as it would give him a fighting chance.  The Complainant submits he was confident his past work experience and his qualifications were more relevant to the role than those of the intended slot and he asked the Respondent to provide him with an interview opportunity to demonstrate this. 

The Complainant submits he asked the Respondent to treat him with the same empathy, fairness and compassion they were showing to the intended slot by finding her a job in the organisation that was well outside of her core competencies.  The Complainant drew the Respondent’s attention to the fact that HR had accidentally circulated a file which showed the intended slot had her existing job profile reviewed at the start of this process and it failed to match with the Head of Region role. The Complainant submits the Respondent was exercising its right to provide her with suitable alternative employment at his expense.  The Complainant submits he subsequently discovered there was a role which was very similar to the role the intended slot was in which was also currently available, and he submits she could have been equally matched against that or slotted directly into it.  The Complainant submits the intended slot had been based in Poole HQ and had wished to return to Ireland for some time and he submits the process worked out very favourable for her to his detriment. 

The Complainant further submits the intended slot was afforded an opportunity to interview for the Ireland region job secretly in the middle of the consultation process when she appealed.  The Complainant submits there is no transparency here when compared to the process used for all the other Head of Region roles later appointed in 2022 at the conclusion of the redundancy process and not in the middle of it. 

The Complainant received the outcome of his redundancy appeal on 07/12/2021 which refused to overturn the decision.  The letter states as follows “It is unfortunate for you that there was another person whose role description was a closer match to the Head of Region role which offered them Suitable Alternative Employment status and consequently they were interviewed and were successful for the role and therefore the Head of Region Ireland role in Ireland is no longer available.”  The Complainant submits that what they are in effect saying here is the person who was offered the post, whose role had been that of the lead manager in the policy department, was more suitable for the Head of Ireland Region role than he was as the senior operational manager in Ireland, a role he had held since 2018 and which was almost identical to the proposed new role.  The Complainant submits at no stage did the appeals manager investigate the comparison between the appointed person’s policy role and the new Head of Region role despite the former being a policy development role and the latter an operational front-line management role. 

The Complainant submits the Respondent refused to put his role through the job matching process for Head of Region when his role was at “risk”.  The Complainant submits the Respondent made no effort to explore to the fullest means possible whether or not his role profile sufficiently matched to the new Head of Region role and if it was found to be on par with matching to the same level as the person appointed he submits they both could have been interviewed for the post in the same manner as they looked after the person appointed to the role under suitable alternative employment. 

Suitable Alternative Employment (SAE):

The Complainant submits the letter from the appeals manager provides “it remains open to you to apply for other roles, including other Head of Region roles, and you acknowledge that you have been sent a list of potential roles form the HR team.”  The Complainant finds this to be one of the most remarkable and insulting findings arising from his appeal.  The Complainant submits the following question was asked on 12/11/2021 by a Lifesaving Manager colleague: “As I live outside the region ….can you therefore clarify for me that if I were to apply and be successful for Head of Region that I could remain living outside of the region”.  The response received on 16/11/2012 was as follows: Ideally the Head of Region will take a role where they are living within home boundaries.  To confirm for the successful candidate the place of work will be home based and all travel within the region will be classified as business travel and covered by the RNLI’s business expenses policy.  If the successful candidate is living outside of the chosen Region then any travel from home to the boundary of the chosen Region would not be covered as business travel.”

The Complainant submits that in order to secure a job for himself and with no support from the Respondent he could have, according to the appeal outcome, applied for example for the Scotland job and he notes from the appeal outcome that he seems to be deemed suitable to apply for a Head of Region role after all.  The Complainant submits given he lives in Ireland applying for any of the other region jobs he would have to pay for all flights to and from and incur all other expenses. 

The Complainant submits the list of potential roles he received is actually a consolidated list of all posts equally available to all on the website including but not limited to coxswain, mechanic, financial auditor.  The Complainant submits there seemed to be no awareness in HR of his qualifications and his previous experience and he questions the competence of HR to explore his suitability for other roles or to fully utilise the suitable alternative employment option for him. 

The Complainant submits no interest was shown by the Respondent in affording him, at a minimum, a fair and reasonable shot at interviewing for his post.  He submits no interest was shown in exploring in more detail his concerns about the transparency of the decisions reached in making him redundant. The Complainant submits there wasn’t really much more they could have done to make sure they got rid of him. 

The findings and conclusions in the within case are based on the uncontested evidence of the Complainant.  The Respondent did not attend and was not represented at the hearing.  I am satisfied the Respondent was on notice of the date, time, and venue of the scheduled hearing due to commence at 11.30 on the day.  I am satisfied every attempt possible was made, above and beyond what was required, in the intervening hour to contact the Respondent before I proceeded with the hearing shortly after 12.30.

In everyday layman’s terms a redundancy is understood to occur where an employee’s position ceases to exist and the employee is not replaced.  The within case does not fall within these simple parameters.

Relevant Law:

This complaint is to be considered under the Unfair Dismissals Acts, 1977-2015 and the Redundancy Payments Acts, 1967-2014. 

Unfair Dismissal

Section 6(1) of the Unfair Dismissals Act, 1977 provides that: - 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.”  The burden of proof rests with the employer.  It is for the employer to present evidence to dislodge the presumption of unfair dismissal. 

Section 6(4)(c) of the Unfair Dismissals Act, 1977 recognises the right of an employer to dismiss an employee due to redundancy: 

“…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: [emphasis added]

(c) the redundancy of the employee”. 

Subsections (a), (b) and (d) of this section are not relevant to this complaint.

Section 6(3) of the Unfair Dismissals Act, 1977 specifically addresses redundancy situations and provides that in cases where employers purport to attribute a dismissal of an employee to a redundancy, the dismissal will be deemed unfair if the selection process was unfair or if fair procedures were not followed:

(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.

Section 6(2) which is referred to above as “subsection (2)” addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters that are not relevant to the Complainant in the within case. 

Section 6(6) of the Unfair Dismissals Act sets out the applicable burden of proof as follows:

(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 [emphasis added]

(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, ifthe 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.

The Statutory Definition of Redundancy:

Section 7(2) of the Redundancy Payments Act 1967 (as amended) sets out the broad definitions of redundancy:

“(2) …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— [emphasis added]

(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.”

Paragraphs (a) and (b) are impersonal relating to the requirements of the business.  Paragraph (c) by its very nature will involve selection of employees in a reorganisation or restructuring plan aimed at securing numerical flexibility.  Paragraph (d) and (e) are focused on job or person specifications or on the needs of the business for change. 

It is an essential feature of redundancies the position is made redundant and not the employee personally.  The central characteristics of a redundancy are impersonality and change. 

In St Leger v. Frontline Distributors Ireland Ltd [1995] ELR 160, the EAT held as follows:

“Impersonality runs throughout the five definitions in the [Redundancy Payments] Act.  Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job … Change also runs through all five definitions.  This means change in the workplace.  The most dramatic change of all is a complete close down.  Change may also mean in a reduction in need for employees, or a reduction in numbers.  Definition (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job.  Under these two definitions change in the job must mean qualitative change.  Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words ‘other work’. More work or less work of the same kind does not mean ‘other work’ and is only quantitative change.  In any event the quantitative change is this case is in the wrong direction.  A downward change in the volume of work might imply redundancy under another definition, (b) but an upward change would not.”

In order to prove that an employee was dismissed by reason of redundancy pursuant to section 6(3) the employer must prove there was a redundancy situation and redundancy must be the main reason for dismissal.  The dismissal will be deemed unfair where the selection process is found to be unfair and where fair procedures are not followed. 

Murphy & Regan, Employment Law, (2nd ed., Bloomsbury Professional, 2017) at p776 provides a succinct summary of the combined effects of both aforementioned statutes as follows:

“The combined effects of the Redundancy Payments Acts and the Unfair Dismissal Act is that an employer, when contemplating a dismissal on grounds of redundancy, must first ensure that the relevant circumstances fall within the definition or redundancy set out in the redundancy payments acts.  Once this is the case that employer must then ensure that the procedures whereby an employee is selected for redundancy are transparent, objective, and fair.  In all cases the employer must ensure he conducts himself reasonably”. 

Genuine Redundancy:

I accept the Respondent is entitled to take measures to introduce new regional support structures across the UK and Ireland and all the other laudable aspirations set out in the consultation document and in so doing I accept the Respondent has the right to implement redundancies.  I accept the Respondent is entitled at any stage to restructure its business model.  However, the Labour Court held in the case of Component Distributors (CD) Ireland v. Brigid (Beatrice) Burns UDD1854 as follows:

“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.” [emphasis added]

The first question for consideration is whether a genuine redundancy situation existed in the Respondent organisation.  I accept the proposed realignment and restructuring activity in the organisation ultimately created an overall redundancy situation in the organisation by the removal of a management layer from the organisational structure as depicted in the organisational chart in the consultation document. 

I am not entirely satisfied the roles of the six Lifesaving Managers were redundant when I consider this matter through the lens of the most basic definition of a redundancy which is where an employee’s position ceases to exist and he is not replaced.   The employer may only make a role redundant where it has been decided the role is no longer required to be filled by anyone.  In order to declare a position redundant, the employer must be able to demonstrate the role no longer exists, is no longer required by the organisation and will not be filled by another employee.   

With all respect to the other 5 Lifesaving Managers, I am only concerned with an inquiry into whether the Complainant’s redundancy was a genuine redundancy or if he was unfairly dismissed as alleged. 

The Lifesaving Managers role did not cease to exist.  The role was given a new Head of Region title and the Respondent seemed unable to provide any answers to the questions on any material differences between the “proposed new role” and the “role proposed to be removed”.  The consultation document provides the Head of Region roles “assume higher levels of regional strategic accountability for regional performance” on the one hand whilst on the other hand acknowledging that the Respondent “is building on the regional management structures that were established in 2019” referred to by the Complainant in Phase 1 above as the embedding stage.  Notwithstanding, the Lifesaving Manager roles including that of the Complainant were deemed to be “at risk” of redundancy.   

For completeness, even if I were satisfied that the Complainant’s role was redundant it would not automatically follow that his dismissal was not unfair. 

Was the manner of dismissal fair and reasonable?

Section 6(7) of the Unfair Dismissals Act, 1977 set out above requires me to have regard to the reasonableness of the conduct of the employer.  While to some “reasonableness” may seem a somewhat nebulous or subjective concept it will often be more discernible by its absence than by its presence.  In the context of a redundancy, “reasonableness” means treating the employee with respect and fairness in light of all the circumstances. 

Where redundancy is presented as the reason for termination of employment, it must not only meet the definition of the term, but it must be shown the employee was fairly dismissed.  In the seminal case of Panisi v. JVC Europe Ltd. [2011] IEHC 297 the High Court held:

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason … 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 Acts 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 Panisiit was also held that: “It may be prudent and a mark of genuine redundancy, that alternatives to letting an employee go should be examined … Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer”.  

I am mindful also of the impact of a redundancy on an employee as characterised by Charleton J in Panisi as follows:

“Redundancy can be a devastating blow.  Where economic conditions are difficult, or where the employee who is let go has aged or is experiencing health difficulties, finding alterative employment may be impossible.  Year of devotion to an employer count for nothing where technology overtakes the workforce, rendering the labour of those displaced unnecessary, where new methods of work are demanded from those who do not have the skills to respond, or where the product is deemed obsolete.  All these are examples of a genuine redundancy.  As ordinarily understood redundancy means that a worker is no longer needed.  Redundancy is not, however, a personal choice.  It is 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.”

In the within case, it would seem there were no detailed selection criteria applied as required as all employees within the selection pool of Lifesaving Managers were notified they were “at risk”.  There would have been no requirement for selection criteria as the employees in that particular role were put “at risk”. 

Alternatives to Redundancy:

Applying Brigid Burnscited above to the facts of the within case,I find it unusual that there is no mention of a voluntary severance scheme as part of the programme of reorganisation and restructuring embarked on by the Respondent.   As part of any redundancy process an employer is obliged to look at alternatives to redundancy.  It is well established that employers identify and explore the feasibility of pursuing less drastic measures than redundancy and included among those would be providing a voluntary scheme in advance of triggering any compulsory redundancies.  I note this is not a case where a compulsory redundancy situation was driven by a financial cost-cutting imperative.

Consultation Process:

The Labour Court in the case of Cuan Tamhnaigh Teoranta v. Declan McShane UDD224, when referring to the consultation process in that case, described it as “perfunctory and pro-forma”.  It was held “there was no meaningful effort made, in the Court’s view, to consider options for alternative employment for the Complainant”. 

On the basis of the Complainant’s detailed submissions and his uncontested evidence at hearing I find the vagueness referred to inPanisiis a predominant feature of the whole process around the dismissal of the Complainant.  The shortcomings in the consultation process are characterised by the delay in getting answers to relevant questions.  I find it remarkable that an organisation such as the Respondent would have entered into this consultation process with their employees without creating a comprehensive Q & A document that would have encompassed every potential question that could be raised by employees facing redundancy in line with good employer practice in the conduct of redundancies.  I find the delay in providing answers to questions during such a critical time in his life for the Complainant to be unfair and unreasonable.  I am mindful of Charleton J in Panisi and his recognition that “redundancy can be a devastating blow.”

It is noteworthy the Labour Court highlighted the consultation process and the provision of an appeal as important considerations in determining the fairness of a redundancy process in Kohinoor Ltd v. Hussein Ali UDD1629   

Suitable Alternative Employment:

I find on the basis of the uncontested evidence of the Complainant that the Respondent in the within case falls short of its obligations in terms of any attempt at all to provide suitable alternative employment in the case of the Complainant whilst at the same time providing suitable alternative employment before the consultation process had even concluded in the context of the person appointed into the Head of Ireland Region role, the role previously held by the Complainant. 

This person was appointed not only before the consultation process had ended but also before the Complainant’s appeal against his redundancy had been heard.  Based on the evidence of the Complainant it would appear the appointed person was “at risk”, appealed, appeal heard and under suitable alternative employment (SAE) was appointed to the Ireland role even before the Complainant had his final one-to-one meeting.  This was all accomplished before the consultation process had even ended. 

I find the Respondent did not adequately give serious consideration to suitable alternative roles for the Complainant.  I am satisfied there was no meaningful engagement with the Complainant on the matter of securing suitable alternative employment for him apart from being sent a generic list of all available roles by HR.  I find the Complainant was treated unfairly and unreasonably by the Respondent in a situation whereby the Complainant was assured during his first one-to-one that the Ireland role was still available and by the time of his ‘end of consultation and notice meeting’ he was told the Ireland role was gone and that a colleague had secured that role under suitable alternative employment. 

Redundancy Appeal: 

The Adjudication Officer in ADJ-00000381 commented as follows:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.” [emphasis added]

The circumstances of the instant case are completely different but the above passage highlights the importance of an appeal and the Complainant did appeal as set out above.  However, based on the extracts from the appeals manager’s letter that I have had sight of I have to question if he had even considered the Complainant’s appeal or if this was just a ‘tick the box’ exercise on the part of the Respondent.  The letter provides “it is unfortunate for you that there was another person whose role description was a closer match to the Head of Region role which offered them Suitable Alternative Employment status and consequently they were interviewed and were successful for the role and therefore the Head of Region role in Ireland is no longer available.” 

I find it extraordinary that there was a colleague who had been in a policy development head office type role but yet her role description was found to be a closer match to the Head of Region role which is a completely front-line operational type of role and a role which the Complainant had filled since 2018 and yet the other person was deemed to a closer match because of her role description.  It would be difficult to find two less similar roles. 

I find on the basis of his uncontested evidence that the final ignominy for the Complainant in all of this was when he was notified that his appeal against his redundancy was not upheld but that he could apply for any of the Head of Regions roles all of which appeared to be still available apart from the Ireland role which was filled during the consultation process having previously been refused to have his role undergo the job matching process for a Head of Region role.  There is an incomprehensible inconsistency inherent in this statement by the Respondent that he can now apply for any of the Head of Region roles despite not having been deemed suitable for the Head of Region role in Ireland. 

I find it extraordinary in all the circumstances that the Complainant is now invited to apply for these roles in Scotland, Wales and England North East, South West and South East respectively not least for the reason that the appeals manager knew or ought have known the Complainant is domiciled in Ireland and even if this were a firm offer of suitable alternative employment, which it is not, it would not satisfy the test of what constitutes suitable alternative employment. 

Section 15 of the Redundancy Payments Act, 1967 deals with the offer of suitable alternative employment by the employer to an employee whose role has been made redundant.   The United Kingdom Employment Appeals Tribunal case of Hudson v. George Harrison Ltd [2002] EAT 0571/02 which considered the almost identical provisions in British law held as follows:

“Section 141 (2) being the English Legislation, involves taking into account the personal circumstances of the employee.  The test is wholly subjective but it includes taking into account those personal circumstances.” 

Applying Hudson v. George Harrison Ltdto the within case, it is clear the Respondent took no account of the Complainant’s personal circumstances when informing him he could now apply for the other Head of Region roles. 

I find that it was unfair and disrespectful to the Complainant that he should discover while the consultation process had not yet finished that someone was in fact appointed to the Ireland role and he would not have the opportunity even to interview despite all the assurances given to him by MD.    I struggle to find a modicum of fairness in the manner in which the Complainant was treated throughout this process from the very outset when expectations were raised by MD for this staff grouping including the Complainant about the future of their roles in the organisation.  MD knew or ought to have known his goal of creating a leaner flatter structure at the top would likely eliminate a layer of management and the consequences of this would reverberate and ricochet throughout the organisation.  Notwithstanding, the Complainant and his colleagues were influenced by the rhetoric, and they fully engaged with MD in assisting him. 

I am satisfied that even though there may be an overall redundancy situation in a workplace the cause-and-effect approach necessitates that an employee’s own role must be directly affected.  I am guided here by the case of Edwards v. Aerials and Electronics (Ireland) Ltd UD236/1985 where the EAT considered the case of a Dublin based MD dismissed following re-organisation and the employer’s decision to run the company from Belfast and held as follows:

“The Clamant has raised major doubts as to whether the redundancy was genuine.  We recognise that the function of a full time Managing Director no longer exists, but we must direct our minds to the cause-and-effect relationship between redundancy and dismissal.  The issue was whether he was dismissed because the employer had decided to reorganise the structure of the company, or whether the decision was taken to dismiss him for some other reason.  In other words, was the reorganisation a cause or a consequence?  On balance we are inclined to the latter view.” 

Applying Edwards v. Aerials and Electronics (Ireland) LtdI have regard to the ‘cause and effect’ in the selection of an employee for redundancy.  In order to rebut the statutory presumption of unfairness the employer must be able to show substantial grounds to justify the dismissal of the employee in question.  The Respondent must answer the question of why this employee.  I do not find, based on the uncontested evidence of the Complainant, that the redundancy was for ‘reasons not related to the employee concerned’ and that the reasons were ‘impersonal’.  I am satisfied the reorganisation was not the cause of the Complainant’s dismissal and whatever that cause was lies within the peculiar knowledge of the Respondent. 

I find the dismissal of the Complainant, by reference to the facts as presented to me and by reference to the applicable law, and for the reasons stated above, to be an unfair dismissal.  The manner in which the Complainant’s redundancy was effected was entirely at odds with his right to fair procedures as provided for in the legislation.  

Redress:

At the close of hearing I formally requested the Complainant forward a submission on mitigation and loss to the WRC.  On receipt of same, this was forwarded to the Respondent who was given a right to reply which they exercised.  There was correspondence from a legal firm to the WRC on the evening of 13 March following on from the hearing on 10 March advising they were coming on record for the Respondent.  Accordingly, they were provided with a copy of the Complainant’s post-hearing submission.   

I have carefully reviewed and considered both submissions in my assessment of redress in the within case.    

Section 7 of the Unfair Dismissals Act sets out redress where the dismissal is deemed to be unfair.  Such redress might include re-instatement, re-engagement, or compensation for any loss attributable to the dismissal, where compensation for such loss does not exceed 104 weeks’ remuneration.  I determine, having carefully evaluated all the circumstances of this case, that the re-instatement or the re-engagement of the Complainant is neither a practical nor a viable option. 

Where an award of compensation is to be awarded, it should be just and equitable.  Regard can be had to the conduct, acts and omissions of the parties as well as the employee’s mitigation.  Financial loss is defined as “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.” 

Redress must be just and equitable.  In the within case I note the Complainant has received a redundancy lump sum payment.  Therefore, I do not make an award for any loss or diminution of a right arising under the Redundancy Payments Act.  It is important to note that actual loss, prospective loss and a redundancy entitlement are separate and distinct.  Actual and prospective loss is calculated according to loss arising after the unfair dismissal.  The third category relates to an entirely separate head of loss, that of a lump sum entitlement from accrued service.  Where a dismissal is held to be unfair and the employee has been paid their redundancy lump sum entitlement, actual and prospective loss should still be assessed.  This is not double compensation, as the lump sum entitlement is an entirely separate head of loss. 

Accordingly, I make an award for financial loss attributable to the dismissal, i.e., after the dismissal.  An award of redress must be just and equitable and take account of the conduct of the employee and employer.  This is provided for in section 7(1) “just and equitable compensation.”  

The Complainant’s employment with the Respondent terminated on 04 Mach 2022.  He typically earned €7,300 gross salary per month.  The Complainant typically earns €6,675 gross salary in his new role and there is no provision for an employer’s pension contribution as this is a temporary contract.  There is no healthcare and no company car.

Taking the above factors into account, I order the Respondent to pay the Complainant the sum of €30,000 as just and equitable compensation.   I order the Respondent to pay this amount within 42 days of the date of this decision. 

Unfair dismissal; unfair procedures; redundancy; reorganisation; restructure;