Complainant

Respondent

Parties

Paul Kealy

Ricoh Ireland Ltd

Representatives

Brian Kirwan, HR Consultant

Ruth Heenan, IBEC

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-00049430-001

30/03/2022

The complainant joined the respondent’s company in October 2012.  When his employment ended due to the redundancy of his job in July 2021, he was a business development manager in the commercial and industrial print sector.  His earned a basic gross salary of €44,535 and he had the potential to earn up to €33,750 annually in commission, subject to key performance indicators outlined in his sales pay plan.  A copy of this plan was submitted in evidence at the hearing.

Under the heading of the Unfair Dismissals Act, the complainant claims that his dismissal was unfair and that his job was not redundant.  He claims that his employer was motivated to terminate his employment because of a grievance he submitted in 2020 under the Payment of Wages Act.  Before considering the complainant’s case and the respondent’s defence to his claim, I wish to set out the facts that emerged at the hearing concerning the complainant’s grievance and the process that led to the termination of his employment.   

Chronology of the Complainant’s Grievance

On April 7th 2020, due to the impact of the Covid-19 pandemic on the respondent’s business, the complainant was laid off.  During the lay-off, he claimed the pandemic unemployment payment, otherwise known as the “PUP.” 

A month before he was laid off, on March 6th 2020, the complainant concluded a sales agreement with a client, who I will refer to as XYZ Printing.  He was involved in the early stages of the deal; however, on May 25th 2020, due to the impact of Covid-19 on its business, XYZ Printing cancelled the order.  The sales team then commenced negotiations on a revised deal, and this was concluded on July 5th 2020.  The payment terms for the device that the client purchased were revised and the final payment was made in February 2021.

On March 23rd 2021, the complainant raised several grievances related to his job.  Rather than the €1,913.80 which he was paid in commission on the XYZ deal, he claimed that he should have received €8,000.  Among other grievances about communication and correspondence while he was out sick, he claimed that he was being “strung along with platitudes and vague assurances” regarding a return-to-work after being laid off in April 2020.

On March 30th 2021, the HR business partner wrote to the complainant to extend his lay-off until June 30th 2021.

On May 4th 2021, following an investigation into the complainant’s grievances, the marketing manager wrote to him and recommended that, to avoid confusion in the future, pay plans should be shared with employees and the grievance procedure should be updated.  She also recommended that 20% of the total gross profit on the XYZ deal, €1,913.80 was an appropriate amount of commission on that sale.

On May 10th 2021, under 11 headings, the complainant appealed the findings of the investigation into his grievances.  On May 25th, he attended a meeting with the manager appointed to hear his appeal.  Also on that day, he submitted a complaint to the WRC under the Payment of Wages Act 1991, concerning the failure of the respondent to pay him the commission that he claimed he was due.

Following meetings with the service director and the sales director, the outcome of the appeal was confirmed in a letter to the complainant on June 17th.  In line with the complainant’s pay plan, the manager who heard the appeal recommended that he should be paid commission of €4,125 on the XYZ deal, instead of the €1,913 initially proposed by the sales director.

Chronology of the Redundancy Process

On Friday, March 12th 2021, having been laid off for 11 months, the HR business partner wrote to the complainant and acknowledged that he was ill and that he had sent in a medical cert that week.  The complainant had been requested to attend a virtual meeting the previous Monday, March 8th.  The HR business partner said that the purpose of the meeting was to discuss the fact that a business development role had come up due to a resignation and she asked him if he was interested.  In her letter, the HR business partner explained that the role required just two or three days a week at that time and she could not confirm when the days would increase.

The HR business partner also told the complainant that, if he remained on lay-off, then, with effect from March 31st, his employer’s pension contributions would cease and he would be required to return his company car. 

The complainant did not indicate any interest in the two- or three-day week job as a business development manager.

In June 2021, the sales director outlined to her staff a proposal to reduce headcount from 12 to nine and for the sales team to focus on all lines of business with no business specific specialist.  On June 28th, the complainant joined the sales director and the HR business partner on a phone call.  The note of the call which was submitted in evidence shows that the complainant was informed that his “current role does not exist in the new structure” and that he was at risk of redundancy.

On the same day, the complainant received two letters from the company; the first letter was from the sales director in which she confirmed the discussion at the virtual meeting that day and that his job was at risk of redundancy.  In a second letter, the HR business partner informed him that his lay-off was extended until July 31st.

A meeting then took place on July 12th over MS Teams, although the complainant couldn’t use a camera on his network.  The sales director explained the sales strategy to the complainant as “the hunting of corporate business.”  She said, “…given the size and current climate of the Irish market it is not feasible for us to have a dedicated specialist as a lot of support is coming from the UK on the production print piece.”  The complainant was informed that a decision had not yet been made, but that the change in structure could impact on his role.  In response to a question from the complainant, the sales director said that the sales team would be reduced from 12 people to nine.  She explained that a retired employee and another person who resigned would not be replaced.  The sales director referred to the business support role that arose from these two departures which the complainant was asked to consider.  She said that he didn’t respond when he was asked to say if he was interested in taking on some of their work.  The complainant said that he was sick at the time.

The complainant was asked to come up with suggestions or proposals to avoid the termination of his employment.  He was informed that there were no vacancies in the sales department.

Towards the end of the meeting, the complainant was informed that, if his job was made redundant, he would be paid a statutory redundancy payment of €9,780.  He was also informed that, if he was made redundant, his last working day would be July 31st.

In the days following the meeting of July 12th, the sales director contacted the complainant to arrange another meeting but he did not respond and he did not join the calls that were scheduled.  On July 23rd, he was asked to submit suggestions to avoid the redundancy of his job before close of business on Monday, July 26th.  When she received no response, the sales director wrote to the complainant on July 30th 2021 and confirmed that his job was redundant.  He remained on lay-off and his employment was terminated on September 30th.  He did not appeal against the decision to make his job redundant.

The respondent’s position is that the complainant was not unfairly dismissed, but that his job was genuinely redundant.  He was informed that his job was at risk of redundancy and he was offered the right to be represented at meetings with his employer.  The respondent asserts that fair procedures were followed as best they could be in circumstances in which the complainant did not engage in the redundancy process.

As he was dismissed due to redundancy, on behalf of the respondent, Ms Heenan submitted that, in accordance with section 6(3) of the Unfair Dismissals Act, the complainant cannot substantiate a position that his dismissal was unfair.  Ms Heenan referred to section 7 of the Redundancy Payments Act 1967, and the definition of redundancy under five headings, including,

(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,

And,

(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.”

Ms Heenan presented information regarding sales of digital press printing machines which were concluded by the complainant.  She said that, in 2019, he sold one machine and he negotiated the sale of a machine in 2020 which was cancelled by the customer, “XYZ Printing.”  He was eventually paid commission for this sale, although he submitted a grievance about the amount.  The complainant disputed the sales figures presented by Ms Heenan, and he claimed that he sold four or five printers between 2019 and the commencement of his lay-off in March 2020.

In her submission of July 24th, Ms Heenan provided information regarding the decline in the sales of the printing machines that the complainant had been selling since 2012.  She said that the documents show that the commercial print market had declined and that it was no longer commercially viable to have a dedicated specialist in that business.  This submission also provides details of the volume of printing done on the respondent’s machines between 2018 and 2022.  The document shows a significant decline in volume in 2020 and a further decline in 2021, with a small recovery in 2022.  Ms Heenan submitted that, in a depressed market, where customers have under-utilised equipment, it is extremely unlikely that they would invest in new equipment.

Ms Heenan referred to the Labour Court decision in the case of Castolin Eutectic Ireland Limited and Bogdan Vasarheli[1]in which the Court concluded that the redundancy of Mr Vasarheli’s job was carried out “with little or no regard to fair procedures.”  Despite this conclusion, the Court found that Mr Vasarheli’s efforts to secure employment after he was made redundant was inexplicable and he was not awarded any compensation.  

In conclusion, Ms Heenan referred to the offer to the complainant of the role as a business development manager selling a higher volume of smaller printers.  He asked for a copy of the contract for his role but did not follow up on his enquiry.  Only one commercial print sale was achieved in 2020 and this was not sufficient to cover the cost of a salesperson.

The respondent contests the complainant’s assertion that the decision to make his job redundant was personal.  He was the only employee in a specialised sales role and the only employee in scope for redundancy.  Ms Heenan said that the dismissal of the complainant due to redundancy cannot be unfair as there was no relevant selection criteria for the job that the complainant held, which was singular and unique.  She asserted that the process that ended with the termination of the complainant’s employment was fair and reasonable and in line with custom and practice and she asked me to find that his complaint is not well founded.

Evidence of the Managing Director, Mr Gary Hopwood

Mr Hopwood said that the reason the complainant was made redundant was because he was a specialist in the commercial and industrial print sector and the company needed its sales staff to work across all aspects of the company’s business.  Mr Hopwood said that the complainant’s job has been distributed among other employees.  

During the Covid-19 pandemic, Mr Hopwood said that there was a reduction of 40% in the sale of office printers and a 16% drop in business in the commercial and industrial print sector.  The reduction in sales had a knock-on effect on annuities from maintenance contracts.  The company decided to close its contract printing facility in Glasnevin.  In 2021, the management assessed the economic state of the company and decided that rather than having one person dedicated to one product, all the salespeople should sell across all the company’s lines.

Mr Hopwood referred to the offer made to the complainant in March 2021, to apply for the role of business development manager.  He said that the complainant had the skill set for this job and, although it was mostly focussed on smaller printers, with some training, he would have had no issue doing the job.  Mr Hopwood said that, although this was a part-time job, it would have been easier for the complainant to get another job, even outside the respondent’s business, if he had taken up this job.

Cross-examining of Mr Hopwood

In response to questions from Mr Kirwan, Mr Hopwood said that the business hasn’t really returned to where it was before Covid-19.  He said that comments on the company’s website are written from a UK perspective and are not related to the Irish business. 

Mr Kirwan asked Mr Hopwood why, if the complainant has a desirable set of skills, he was laid off for so long?  Mr Hopwood replied that the reason was because he was in a job that was dedicated to selling large machines.  He said that it was easier to sell printers at a cost of €6,000, but not €100,000. 

Responding to a question about why someone with less experience than the complainant or someone on probation was not made redundant, Mr Hopwood said that the complainant was in a specialised role in the commercial print sector, but others working in sales roles also had experience.

Mr Kirwan referred to a casual discussion between the HR business partner, Mr Hopwood and the complainant in February 2020 about Valentine’s Day.  The complainant alleges that, when he said that he would buy his wife flowers, but not a card, Mr Hopwood said, “Are they for her grave?”  Mr Hopwood said that he did not recall making this comment.

Referring to the offer of a business development job in March 2021, Mr Kirwan asked Mr Hopwood if the purpose of this offer was to reduce the commission paid to the complainant.  Mr Hopwood said that the business development managers on his team are paid the highest commission.

Mr Kirwan referred to the second submission he sent to the WRC in advance of the hearing of this complaint.  Included as an appendix is a service call report from April 2020 to March 2021 showing that 625 service calls were logged with the Irish business.  Mr Hopwood replied that the volume of service calls is not related to printing.  He said that during Covid-19, customers held on to old machines.  The complainant was not involved in service calls and his job was to sell machines.

Mr Kirwan asked Mr Hopwood why an accountant was appointed after the complainant reported on accounting irregularities.  Mr Hopwood said that he wasn’t aware that the complainant had made such a report and that the company appointed a finance manager because the business needed one.

Evidence of the Human Resources Manager, Ms Jade Allen

Ms Allen joined the company in October 2021 and she was therefore not involved in the departure of the complainant, which occurred in September that year.  Ms Allen said that the complainant was the only person employed in commercial and industrial print sales.  Ms Allen said that, contrary to the complainant’s assertion, the company has not recently recruited someone to work on production printing sales.

Ms Allen said that the people who returned from lay-off before March 2021 were not in the same jobs as the complainant. 

At the time of his dismissal, Ms Allen said that there were sales roles available, but not in commercial and production printers. 

Cross-examining of Ms Allen

Mr Kirwan asked Ms Allen if the company could produce any evidence that the complainant was offered a job as an alternative to being made redundant.  She said that the company couldn’t create a job.

Mr Kirwan referred to Mr Hopwood’s evidence that the business was down by 50%.  He asked Ms Allen why 50% of their employees weren’t made redundant.  Ms Allen said that she couldn’t comment on this.

In September 2020, while he was on lay-off, the complainant sought payment of what he considered was outstanding commission associated with the sale of a digital press printer delivered in August 2020 to the client, who I have referred to as “XYZ Printing.”  When the commission wasn’t paid, in May 2021, the complainant initiated a grievance to have the matter resolved.  Mr Kirwan said that this resulted in a part-resolution.  On May 25th 2021, the complainant submitted a complaint to the WRC under the Payment of Wages Act.  In an email on June 28th 2021 at 11.53, the complainant’s solicitors wrote to the respondent to inform them that the matter had been referred to the WRC, although the letter is dated June 25th.  At 17.33 on June 28th, Mr Kirwan said that the sales director sent an email to the complainant, informing him that his job was at risk of redundancy.  Mr Kirwan argues that the complainant’s decision to submit a complaint to the WRC “resulted in” the decision of the respondent to make his job redundant. 

During the hearing of his grievance, the complainant claims that he informed the investigators about what he considered were irregular accounting practices.  He claims that, as an outcome from this, the company recruited an accountant.

Mr Kirwan referred to the respondent’s decision during the Covid-19 pandemic, not to lay off four employees who were on probation.  These employees remained in their jobs when the complainant was made redundant.  The complainant’s lay-off was extended many times and he was the only employee on lay-off after 12 months, by which time his colleagues had returned to work.

Six employees with less service than the complainant were not selected for redundancy.  Mr Kirwan said that “it is inconceivable that staff with little or no experience” were retained while the complainant, with many years of experience, knowledge and skills, was selected for redundancy.

In support of his case that the decision to make the complainant’s job redundant was unfair, Mr Kirwan referred to the seminal decision of the High Court in JVC Europe Limited v Panisi[2] where, setting out the conditions for a redundancy to be fair, Mr Justice Charleton remarked that the decision “is entirely impersonal.”

Mr Kirwan referred also to the decision of the Labour Court in Kohinoor Limited V Hussain Ali[3], in which the Court documented the criteria that justifies the selection of an employee for redundancy. 

Finally, Mr Kirwan cited the decision of the Labour Court in Students’ Union Commercial Services Limited v Traynor[4], where it was held that, to avoid a redundancy of a certain employee, the employer is obliged to consider selecting an employee with shorter service.  It is apparent that the respondent gave no consideration to selecting any employee for redundancy other than the complainant.

Reflecting the findings in the Students’ Union case, Mr Kirwan submitted that,

§  The complainant was the only employee selected for redundancy;

§  The company continued to do business in the commercial print sector;

§  The complainant had previously demonstrated to the respondent how it could win new business;

§  The complainant had no input into the decision to make his job redundant;

§  While he was offered the opportunity to appeal, he saw no merit in this because the only vacant positions were in HR or a part-time sales role with no guarantee of hours.

Concluding his submission for the complainant, Mr Kirwan said that it was difficult to find a reason for making him redundant, particularly when, over the previous years, he brought in service contracts to the value of €150,000 per month to the business.

Despite his best efforts, the complainant has not found a suitable job since his dismissal.  He worked as a census enumerator and he now does voluntary work.  He provided an estimate of his financial loss in the two years since his dismissal at in the region of €140,000.

In a supplementary submission uploaded to the case file after the hearing on June 28th 2023, Mr Kirwan referred to the town-hall meeting for the UK and Ireland which took place remotely on March 25th 2021.  At this meeting, the respondent’s CEO for Europe remarked that, “Office print volumes will never be back to pre-Covid-19 levels.  Commercial and industrial print customers are the key to growth.”  He went on to say that it’s “business as usual” for the commercial and industrial print sales teams.” 

Mr Kirwan referred to an industry report showing a return to pre-Covid volumes by April 2021.  He also referred to a contract from an Irish customer in February 2021 to purchase one of the most advanced digital press printers ever installed in Ireland.

Covid-19 mainly impacted the commercial printers who relied on their offset presses while those who invested in digital presses were less impacted.  This is apparent from 625 service calls logged between April 2020 and March 2021 against the installed base of the company’s digital production print presses.

Mr Kirwan also referred to the added requirement for printed material during the pandemic, in the form of posters, banners, floor graphics, leaflets and stickers.  These were all printed on the respondent’s range of digital press printers.

In July 2021, the European business reported an improved market share across several sectors, despite the challenging business environment.  When the complainant was laid off, he claims that there were more than 50 production print press leads and enquiries and that the company continued to market its production print portfolio through social media and by inviting customers to a series of online seminars entitled, “Anything In Print.”

In the UK, the production print press sales team were laid off and returned to work in July 2020 on a three-day-week basis and then full-time from October that year.  The complainant remained on lay-off from April 2020 until his job was made redundant in July 2021. 

Mr Kirwan said that the process to lay off sales staff in March and April 2020 lacked transparency.  Of those who were not laid off, five were on probation.  The sales director, Mary Farrelly joined the company in August 2019 and she recruited six new employees between November 2019 and January 2021. 

To maintain contact with the commercial customer base, Mr Kirwan said that the complainant offered to return to work and to remain on the PUP payment plus €1.00, but this offer wasn’t taken up.

Mr Kirwan referred to another employee who was made redundant and who was paid an ex-gratia lump sum.  I note from the document related to this matter, which was provided to the WRC after the hearing, that this employee initiated the process that resulted in the termination of his employment.

When the complainant was temporarily laid off, on January 4th 2021, a new salesperson commenced in the business.

Evidence of the Complainant, Mr Paul Kealy

The complainant said that “the mood changed” towards him after he submitted his grievance in May 2021.  He said that he “fought tooth and nail to get the commission I was due.”  His line manager was arguing that the order had been cancelled, but he claims that it wasn’t cancelled.  He said that when the issue wasn’t resolved, he was urged to pursue it formally through the grievance procedure.  At the end of the first stage of the procedure, the complainant said that he was offered “a gesture,” which was a fraction of what he claims he was due.

The complainant referred to the conversation about the flowers he intended buying his wife on Valentine’s Day 2020, which was on a Thursday.  He claims that Mr Hopwood asked him if the flowers were for his wife’s grave.  The complainant said that he was in shock and the following Monday, he told the HR business partner that he wanted to make a complaint.  He said that there was no further reference to the matter.  He said that he lost respect for Mr Hopwood and that he dealt mainly from there on with the sales director.

The complainant said that he concluded three orders in 2020, and he named each of the clients to whom he sold printers to the value of €225,000.  He said that the three contracts were signed in February and March 2020.

The complainant said that he couldn’t comprehend why he was laid off, when there was a tunnel of opportunities and new equipment coming on stream.  He said that the service calls for the company’s equipment indicated that clients were continuing to print.

Mr Kirwan asked the complainant why he didn’t accept the job offered to him in March 2021.  The complainant said that the offer was very vague and it wasn’t clear that there was work for five days a week.  He was concerned that if he didn’t deliver the sales required, he would be put on a performance improvement plan.  He was also concerned that he would be on probation if he accepted a new job.  He said that he didn’t turn down the job, but that he looked for clarification about it. 

Regarding the meeting at which he was informed about the redundancy of his role, the complainant said that he went ahead with the meeting because he wanted to try to get a resolution. 

As part of his grievance, the complainant said that at the informal and formal meetings about his grievance, he brought to the attention of management his understanding that invoices were being raised before sales were finalised.

In response to a question from Mr Kirwan, the complainant said that his period of lay-off was extended six times.  The fact of being laid off had the effect of reducing the amount of his redundancy payment.  He said that the company could have included the period of his lay-off in his redundancy calculations. 

Cross-examining of the Complainant

Ms Heenan asked the complainant why he didn’t respond to the company’s efforts to meet him in the weeks before the termination of his employment.  The complainant said that his son was doing the Leaving Cert and, he couldn’t contact anyone from the employee forum.  Ms Heenan referred to the note of the meeting on July 12th 2021 in which the complainant said that he asked questions through the employee forum.  The complainant said that he contacted an ex-member of the forum and he reached out to several employees, but he said that they were concerned about backlash from management. 

Ms Heenan referred to the business development role that the complainant said that he could do.  She asked him why he didn’t mention this during the consultation period.  The complainant replied that the business was aware of his experience.  He said that, in March 2021, he wasn’t prepared to take on a role with such uncertainty.  He said that a colleague told him that he would be on probation if he took the job.  Ms Heenan said that this was not said by anyone and that it wasn’t normal practice.  She referred to a contract issued to the complainant in November 2017 related to the job he was appointed to in April 2012.  The contract confirmed that the complainant had successfully completed his probation.  The complainant said that he had been in the role since 2012 and the contract was issued in 2017.

Ms Heenan said that there was only one deal in the pipeline for production printers in 2020 and that the climate was very uncertain.  The complainant said that three customers had signed contracts.

At the conclusion of his evidence, in response to questions from me, the complainant said that the tone had changed in the company since he submitted his grievance.  He said that he knew that his redundancy was coming.  His lay-off had been extended six times.  He said that he and one other person had long service and that “they were trying to starve us out.”  Listing the people with less service than him, the complainant said that he asked why experience and loyalty was not being recognised.

The complainant said that he didn’t appeal against the decision to make him redundant because he felt that it would be an uphill challenge.  He said that there was no help from the employee forum.

The Relevant Law

It is the complainant’s case that the redundancy of his job was influenced by his submission in May 2021 of a complaint to the WRC about commission on the sale of a printer.  He also claims that it was unfair to make his job redundant and to retain salespeople with less service than him.  His complaint falls to be considered under the Redundancy Payments Acts 1967 – 2014 and the Unfair Dismissals Acts 1977 - 2015.

The Redundancy Payments Acts 1967 - 2014

Section 7(2) of the Redundancy Payments Acts (“the RP Act”) sets out five definitions of redundancy and, although Ms Heenan suggested that the dismissal of the complainant is encompassed under two headings, I am satisfied that we need to concern ourselves with subsection (c):

…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 –

(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[.]

The respondent’s case is that, in June 2021, due to a decline in revenue arising from the slowdown in sales since the onset of Covid-19, there was a need to reduce the number of salespeople.  Referring to an updated sales headcount report provided on the day of the hearing, June 28th 2023, the managing director, Mr Hopwood, noted that there are seven employees working in sales and there is one vacancy.  In addition, two people are employed in pre-sales.  The submission sent by Ms Heenan on July 24th states that in November 2022, there were just four people employed in sales, plus two in pre-sales.  In July 2021, when the complainant’s job was made redundant, there were 10 employees in sales, including the complainant, plus two in pre-sales.  In summary, there are now nine employees in sales and there is one vacancy, compared to 12 at the time the complainant was made redundant.

Considering the case made by the respondent that the job of the complainant was distributed among the remaining salespeople, his dismissal would appear to fall within the definition of redundancy at section 7(2)(c) of the RP Act.  I am satisfied that a genuine redundancy situation existed when the complainant was dismissed in July 2021.  I must now examine the case made by the complainant that the process that resulted in his redundancy was unfair, and that it was unreasonable for the respondent to select him for redundancy rather than an employee with less service.

The Unfair Dismissals Acts 1977 - 2015

My task is to consider if, in terminating his employment, the respondent breached section 6(1) of the Unfair Dismissals Acts 1977 – 2015, (“the UD Act”) which provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant.  Their position is that he was dismissed due to redundancy because the economic environment during and after the Covid-19 pandemic meant that it was not economically feasible to continue to employee a salesperson dedicated to commercial and industrial printers. 

Section 6(3) of the UD Act addresses the fairness or otherwise of a dismissal due to redundancy:

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 this case.

In the case under consideration, “the circumstances constituting the redundancy” was the respondent’s need to reduce costs.  It was evident at the hearing that these circumstances impacted on the job of the complainant and his colleagues, and that the reduction in revenue was across small office printers and the larger, industrial machines that the complainant sold.

Section 6(7) of the UD Act provides that, in considering a complaint of unfair dismissal, as the adjudicator, I may have regard,

(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.

There was no evidence that the respondent had a written redundancy procedure; however, it seems that they adhered to a standard procedure by informing the complainant that his job was at risk of redundancy, inviting him to meetings to discuss the issue and to express his opinion, advising him of his right to be represented and, when he was dismissed, advising him of his right to appeal.  The conditions of the engagement between the complainant and his employer were not ideal, as the meetings were not face to face but over MS Teams and the complainant’s camera wasn’t working, although he could see his manager.  After the second meeting on July 12th, at which the complainant was clearly informed that his job was redundant, he didn’t attend another meeting because he said he had an interview.  After that, he didn’t respond to any further requests to engage with his employer and on July 30th, he was informed that his employment was terminated due to redundancy and that he would be paid in lieu of two months’ notice. 

From a procedural perspective, it is my view that the failings lie at the feet of the complainant rather than the respondent, as he refused to engage in any meaningful way to avoid the redundancy of his job, or to open negotiations on terms that would have been more generous than the statutory amount he was paid.  That said, the situation was always in the control of the employer and I have some concerns about their approach also.

Was it Reasonable to Dismiss the Complainant?

By carrying on the business with less employees and by assigning the sale of commercial printers to others in addition to their own work, I am satisfied that the redundancy of the complainant’s job meets the definition at section 7(2)(c) of the RP Act.  Having reached this conclusion, I must now consider the complainant’s case that there was a personal element to the decision to select him for redundancy, rather than someone with less experience and shorter service.  I must also examine the possibility that the respondent could have taken some alternative action to avoid the termination of his employment.

When he was laid off in April 2020, the respondent did not anticipate an increase in sales of commercial printers in Ireland above the one that was sold (then cancelled and re-negotiated) and this trend is underlined by the fact that one machine was sold in 2021.  It is apparent that the respondent considered the complainant to be a specialist in large machines and he remained out of work for 11 months before any consideration was given to an alternative job.  The HR business partner wrote to him on Friday, March 12th 2021.  He had been asked to attend a virtual meeting on Monday that week, but he submitted a medical certificate stating covering the period from March 8th until the 22nd.  In her letter, the HR business partner said that the purpose of the meeting was “to discuss the future of your role.”  She said that a job had become available due to a resignation of a business development manager and she asked the complainant to consider taking it:

“A vacancy has occurred due to a resignation within the sales team, it is a Business Development Manager role.  While we understand that this is the not the same role that you currently occupy, we want to engage in discussions with you as we have work available in this role.  It is important to note that we currently can only offer 2 – 3 days’ work within this role at present and we cannot confirm or provide a definitive timeline as to when or if we can increase these hours.  We appreciate that the past 11 months have been incredibly difficult and we understand that this business development role is not your role.  However, we want to ensure that you are aware of all options and we want to be as supportive as we can and ensure you are given an opportunity to return to work where we have work available.”

In the next paragraph, the HR business partner gave the complainant the sombre news that, if he didn’t accept the offer of work, and if he didn’t return to the workplace, his employer’s pension contributions would cease and he would be required to return his company car.  She concluded the letter by telling the complainant that the management would like to consult with him over the next two weeks if he was fit.  In his evidence at the hearing, the complainant said that he didn’t reply to the proposal to take on the part-time business development manager role because he thought he would be on probation, he was concerned that if he didn’t meet targets, he would be on a performance improvement plan and that the role was uncertain.  There is no evidence that he contacted his line manager or anyone in the company to discuss these concerns, although in his evidence at the hearing, he said that he knew that his “redundancy was coming.”

It is apparent to me from the letter of March 12th 2021, that the respondent wanted the complainant to come back to work and to take up a different job than the one he had been doing for the eight years before Covid-19.  The purpose of the meeting was to discuss the future of his role.  This was an indication that the company would not reinstate the complainant back in his old job, but that there was work available, albeit on a part-time basis, in another role. 

From March 25th, the complainant was engaged in the grievance process regarding his commission.  The outcome of his appeal was confirmed to him on June 17th and the commission was increased to €4,125.  It was only after the appeal was concluded that formal discussions commenced on June 28th about the redundancy of his job.  I am satisfied that the elimination of the complainant’s job was contemplated three months before he was invited to the meeting on June 28th 2021 to inform him that his job was at risk and that the decision to make his job redundant was not a response to the letter from his solicitor on the same day informing the respondent about the referral of his complaint to the WRC.

From his evidence at the hearing, it was obvious that the complainant felt some hostility towards his manager and the managing director and he pointed to a couple of reasons for this.  There was the Valentine’s Day remark, there was a dispute about commission and he had been laid off for longer than anyone else on the sales team.  It is understandable that he felt aggrieved and added to this, the decision to eliminate his job and to divide it up among his colleagues must have been hard to accept.  The fact that there is a fractious relationship between an employee and their employer does not mean that the redundancy of that employee’s job is unfair and, leaving aside the issue of where the fault lay, I am satisfied that the decision to make the complainant’s job redundant was not motivated by animosity or dislike.

The Offer of a Suitable Alternative Job

On March 12th 2021, three months before he was formally notified that his job was redundant, the complainant was offered a role as a business development manager selling office printers.  We know from the letter from the HR business partner that this was a different job, but it was the view of the company that, as someone with 30 years of experience in the printing business, it was a job that the complainant could do.  While the role was part-time in March 2021, there was no indication that it wouldn’t ever be a full-time job. 

As someone who was clearly unhappy that he was laid off, I find it very strange that the complainant didn’t take up this job and return to work.  I do not accept his explanation that he thought he would be on probation, or that he might end up on a performance improvement plan, or that the offer was uncertain.  It is my view that the complainant should have made enquiries about this job and the terms on offer and got some reassurance about his concerns so that he could go back to work.

Section 15 of the RP Act contains an explicit provision regarding redundancy pay and the offer of a suitable alternative job.  Subsection (1) provides that an employee is not entitled redundancy pay if they are offered a job on the same terms and conditions as their current role.  Subsection (2) provides that an alternative job may be suitable even if the terms and conditions “differ wholly or in part” from the provisions of the previous contract.  For my purpose here, I am concerned specifically with subsection (2):

“(2) An employee shall not be entitled to a redundancy payment if —

(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.”

The complainant was offered a job that he was capable of doing and for which he had the required skills and experience.  He was required to work in the same place that he had worked in since 2012.  He was not guaranteed that he would be required to work five days a week, but I am satisfied that, if he had taken up this job, his hours would have increased as workers went back to their offices with the gradual lifting of restrictions after Covid-19. 

Was it reasonable for the complainant to refuse to even consider this job?  In its decision in Garrett Brown and Isabella Di Simo[5], the Labour Court examined just such a predicament:

“In determining the within appeal, the Court is required to consider firstly the suitability of the offer of alternative employment made by the Respondent in writing on 21st November 2018 to the Complainant, and, secondly, whether or not the Complainant’s decision to refuse the offer was reasonable in all the circumstances.  In Cambridge & District Co-operative Society Limited v Ruse [1993] I.R.L.R. 156, the English EAT, when considering the similarly worded provisions of the British legislation, said that the question of

‘the suitability of the employment is an objective matter, whereas the reasonableness of the employee’s refusal depends on factors personal to him and is a subjective matter to be considered from the employee’s point of view.’”

I accept that a job an employer considers to be a suitable alternative job may be unsuitable from the subjective standpoint of the employee who is asked to take it on.  However, it is clear to me that the alternative job offered was a suitable job for the complainant and I find it difficult to understand why he rejected it.  If he had taken up this job, he would have been back on the payroll and not on the PUP and he would have been in a better position to apply for another job somewhere else if that was his preference.

Findings

In general, aside from the complete closedown of a business, redundancy is not a neat and tidy exercise.  A job may be eliminated, but the employee may capable of doing a different job, or, they may be capable of doing the same job in another part of the organisation.  With some training and support, an employee whose job is redundant may be suitable for a different job altogether.  It seems to me that the objective of section 15 of the RP Act is to avoid the dismissal of an employee, even if the alternative job is not a direct match with the eliminated job.  This is apparent from the (1971 and 1979) insertions at subsections (2A) and (2B) of section 15 which provide for a trial period for the employee to consider if the alternative job is suitable:

“(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

“(2B) Where -

“(a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.”

It is clear from these insertions that the legislature intends that, before reaching a decision on redundancy, an employee should be permitted to try out a different job, even if the wages for that job are substantially less than their normal wages.  It is incumbent on the employer to facilitate the employee to try out the alternative, before giving any consideration to dismissal.  I find therefore, that, in March 2021, when they were contemplating the future of the complainant’s job, he should have been re-deployed to the role of business development manager and he should have been permitted to take up that job on a trial basis for an agreed timeframe before any consideration was given to terminating his employment.

I accept the validity of the argument that could be made that the complainant refused the offer of the alternative job, and that, in one respect, he was the author of his own demise.  I reject this proposition on the basis that it is the responsibility of the employer to provide ongoing secure employment and dismissal, on any grounds, should be a last resort.  It is my view that there should have been no discussion about redundancy with the complainant and, in March 2021, he should have been redeployed to the job of business development manager.

Conclusion

Having given this matter very serious consideration, I find that it was incumbent on the respondent to redeploy and not to dismiss the complainant.  I find that, while the job that he had until the start of the Covid-19 pandemic was redundant, there were no substantial grounds to justify the termination of his employment and I decide therefore that his dismissal was unfair.

I have decided that this complaint is well founded.  In accordance with section 7 of the Unfair Dismissals Act, I must make an award of redress in the form or reinstatement, re-engagement or compensation, as I consider appropriate.  In my deliberations on this matter, I am mindful that the complainant failed to engage with his employer in March 2021 concerning the offer to him of a business development manager role.  In July 2021, during the process that ended with his dismissal, he did not demur, and he did not appeal against his employer’s decision to terminate his employment but waited for eight months to submit this complaint to the WRC.

The complainant opted for compensation; however, he is currently unemployed and the respondent has a vacancy for a business development manager.  I find therefore, that the most opportune form of redress is re-engagement.  I direct the respondent to re-engage the complainant in a role as a business development manager with effect from October 1st 2023.

Dismissal, redundancy, redundancy procedures