Complainant

Respondent

Parties

Liam  Galvin

Cumas New Ross CLG

Representatives

Self-Represented but assisted by Ms L Galvin, Family member, acting as Assistant

Robert Jacob, Solicitor, of  Jacob and Twomey Solicitors LLP

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-00034837-001

25/02/2020

The Complainant was employed as a Life Coach/PCP with the Respondent Social Care Organisation. The employment began on the 4th April 2005 and ended on the 20th September 2019.

The Complainant alleged that he had been Unfairly Dismissed by means of a spurious Redundancy. This was rigorously denied by the Respondent Employer.

The Rate of Pay was stated to be €39,911 per annum for a 35-hour week.

The Complainant gave an Oral Testimony assisted by his wife acting as a Representative. A written submission was made supported, by copy correspondence. The Complainant was cross examined by Mr Jacob for the Respondent.

He had returned from Annul leave on Monday 29th July 2019. On his return he was informed by Ms AK, (the then General Manager) without prior notice, that he had to either take a Reduced Position or accept Redundancy. He was given no reasons for this situation and all proper employment procedures were ignored. He was told he had to decide by Friday  2nd August 2019 which option he was choosing. The Complainant made various unsuccessful efforts, to establish the reasons for this position from Ms AK. He wrote a Memo on the 1st August asking for reasons and details of the alternative position. The Complainant was told verbally that “he had all the information he needed”.

On the 9th August, under severe distress and effectively coercion, the Complainant signed the letter stating that he was accepting Redundancy. On the 12th of August the Administrator, Mr O’D, offered details of an alternative Facilitator position at a reduced salary of €34,668. The Complainant signed this letter, declining the alternative position, again under severe distress as Ms AK had informed him that if he did not sign, the Redundancy offer would be withdrawn, and he would simply be dismissed without a severance package.

Following these incidents, the Complainant served out his notice and left the employment on the 20th September 2019.

In mid-August a dispute arose over the Complainant’s Respondent supplied Laptop /Memory Sticks. Allegations of serious data protection breaches were made. The Complainant was accused of Gross Misconduct. However, these issues were resolved with Ms AK confirming that she would allow the Redundancy payments to go ahead.

The Complainant lodged an Appeal to the Board on the 21st September. A Reply was received on the 28th November stating that “There is no case to answer”. No Appeal was heard.

The Complainant argued strongly that throughout the entire process he was denied all normal employment rights. He was coerced into signing the Redundancy Agreement without out any proper consultations and likewise the letter declining the alternative position. He was not allowed any opportunity of professional representation and the entire process was rushed through in complete disregard of all his rights.

The Redundancy was spurious, and the entire process was simply an egregious breach of all employment rights.

In cross examination Mr Jacob for the Respondent put it to the Complainant that the complaint was simply about increasing his severance pay and that he had very unreasonably declined the alternative job offer. It was accepted that the salary was marginally lower but in the long run the Complainant would have retained all his benefits such as life insurance and pension. The Complainant stated in reply that the relationship with the Employer had become “toxic” following the Meetings/Letter of the end of July. In addition, he was given no proper details for the alternative position and no proper time to even consider it properly. He was coerced /railroaded out of his employment.

The Respondent submitted a written Submission and oral Testimony was provided by Ms SF, General Manager. Mr Jacob, Solicitor, was the chief spokesperson.

The dates of employment were, as in, the Complainant’s submission.

In July 2019, Ms AK, the then General Manager, informed the Complainant that his position as Life Coach & PCP was at Risk of Redundancy. An alternative role as a day Service Facilitator was discussed. Additional information was requested by memo of the 1st August and supplied.

On the 9th August the Complainant confirmed in writing to Mr O’D, Administrator, that he was accepting Redundancy and on the 12th August confirmed that he was not accepting the alternative work offer. The Redundancy came into effect on the 20th September 2019. The alternative position was well known to the Complainant and while it had a marginally lesser salary it would have continued the employment relationship in existence since 2014.

In Mid-August a period of unpleasantness arose over a Data Protection issue but was resolved quickly.

The current Respondent General Manager, Ms F, who was appointed a considerable time after the ending of the employment, explained that the Life Coach & PCP model had to be seen in the context of evolving Clinical practices and changing HSE Policy Directives in this Disability Sector. The Redundancy of the Complainant could, she felt, be possibly explained on this basis. She was not employed with the Respondent at the time and could only speculate regarding events in 2019. The then General Manager, Ms AK, was no longer employed and was not available for the Hearing.

Mr Jacob maintained that the Redundancy had been properly carried out in keeping with all Regulations. The Complainant had not Appealed the Decision in the period up to his Redundancy on the 20th September 2019. His letter to the Board on the 21st September was after the event complained of and could not be seen as an Employment/Redundancy Appeal. The Board had considered it carefully but had come to the proper conclusion that they had no employment case to answer.

The Redundancy was genuine, and no case could exist under the Unfair Dismissal Act,1977. Case law was cited by Mr. Jacob leading from Burke v Superior Express Limited UD 1227/2014.

It was also noted that the Complainant had made little or no efforts to mitigate any losses arising from the redundancy.

3:1         The Legal position

The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 } Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly, in the case in hand, the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to Dismiss /make Redundant was in the “Band of Reasonableness”.

SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures has to be seen as a guideline.

3:3     Review of the Evidence both written and Oral.

Extensive written evidence was presented by the Respondent and supported by considerable witness evidence at the Oral hearing. Full cross examination of the evidence and witnesses took place by the Respondent’s legal representative and by the Complainant’s Representative.

3:4         Redundancy as a permitted ground under the UD Act,1977

Section 6(4) (c) of the Act allows a Redundancy defence to an Employer.

However, there are considerable substantial Legal precedents in this area.

The leading case is Panisi v JVC Europe Ltd [2012] ELR 70 where Justice Charleton stated

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the withholding of employee rights. Redundancy is impersonal. Instead, it must result form, as s 7(2) of the Redundancy Payments ACT,1967, as amended “Reasons nor related to the employee concerned “. Redundancy, cannot, therefore be used as a clock for 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.”

The Redundancy Payments Act,1967 at Section 7 (2) 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,

3:5        Review of the evidence presented – the need for reasons and proper consultation.

In plain English therefore a Redundancy has to satisfy the criteria listed above at sub sections (a to e.)  Legal precedents are very strong on the need for a clear employer justification and a proper period of consultation to the impacted Employee. It cannot be a casual or vague consultation and all Employee rights to representation and Legal review if required have to be scrupulously carried out.

In the case in hand the Complainant returned from his Annual leave and was informed, it appears without any prewarning that his position was at Risk of Redundancy. His sworn evidence was that Ms AK, the Manager, made it clear that it was either accept a lower paid job or take redundancy. There were no other alternatives. Efforts at discussion appeared to have been rebuffed. The Complainant described the atmosphere as “Toxic”

The major difficulty for the Respondent here is that Ms AK was not available to give evidence nor was Mr O’D the Administrator at the time. The Respondent party at the Hearing effectively stated that it was all “before their time” and all they had were paper records which clearly showed that the Complainant had signed for and accepted Redundancy.

The Complainant maintained that he had been placed under extreme duress and coerced into signing these documents.

The Adjudication viewpoint has to be based, in the absence of the key Respondent witnesses, on theoverall context and the oral evidence on the day of the hearing. Regrettably the Complainant had fallen serious ill since 2019 and was limited in his ability to give evidence.

A Redundancy consultation in a case where there are multiple workers is required to be of at least 30 days duration. In this case the Complaint is advised of being at risk on the 29th July 2019 and given until Friday 2nd August to give his decision. He eventually gave his decision on the 9th of August 2019.

This is unseemly haste and has to support the Complainant’s view that he was unfairly pressurised. Ms Ak or Mr O’D are not available to give any other rebuttal view.

On the other hand, the Complainant was a long-standing employee (14 years) and was in a position of considerable senior interaction with staff and clients. The position would have required considerable personal strength. Being coerced by Ms AK is speculative. Unfortunately, the Complaint was unwell for the Hearing and Ms AK was absent.

3:6         Summary

The Burden of Proof has to be with the Respondent employer (as stated by Mr Justice Charleton) above. On balance the Adjudication view has to be that no evidence was produced to justify the Redundancy and key Respondent witnesses were absent.

The sworn evidence of the Complainant was that he was coerced. There did not appear to have been any opportunity afforded to the Complainant to seek independent professional advice or to outline any steps by which he could appeal. He wrote to the Board on the day after his Employment ended but this was not entertained as an Appeal by the Board.

On overall review the Adjudication view has to be that, even if a Redundancy was justified, the procedures and timelines were so truncated as to make the process open to a major charge of Unfairness.

The Respondent has not been able to refute this charge.

Accordingly, the Unfair Dismissal claim has to be found to be warranted.

Au Unfair Dismissal took place - the redundancy defence was simply not strong enough on procedural grounds and lacking in key evidence from Managers in 2019.

Redundancy, Unfair Dismissal