Complainant

Respondent

Parties

Frank  Doheny

B.R.C Mcmahon Reinforcements Limited

Representatives

Rory Treanor BL instructed by Michael Collins of Michael Collins & Company

Anne O'Connell, AOC Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054567-001

19/01/2023

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

CA-00054567-002

19/01/2023

The Complainant commenced his employment with the Respondent on 17 February 2014 as a Environmental, Health and Safety Manager. He was paid €7,080.14 gross monthly (€84,961.68 per annum). The Complainant’s employment terminated on 12 September 2022.

On 19 January 2023, the Complainant referred the following complaints against the Respondent to the Director General of the WRC:

·       Pursuant to the Payment of Wages Act 1991 alleging that the Respondent has not paid him or paid him less than the amount due to him; and

·       Pursuant to the Unfair Dismissals Acts 1977-2015 alleging that he was unfairly dismissed.

The Respondent rejects the above claims.

Ms O’Connell, on behalf of the Respondent submits as follows.

The Complainant’s employment was terminated with effect from 12 September 2022 by reason of a genuine redundancy. The Respondent followed fair procedures at all stages, including seeking the Complainant’s input and proposals to avoid the redundancy situation before any final decision was made. The Complainant was also permitted to appeal the decision.

In relation to the Payment of Wages Act claim, the Respondent submits the Complainant’s bonus was not ‘properly payable’. As the Complainant’s employment had been terminated on 12 September 2022, it was not possible for the Complainant to achieve his targets in September nor was he an employee at the time that the annual bonus would have been payable. The annual bonus for each year is only payable the following year and not before January. It was not payable on 12 September 2022 as alleged by the Complainant.

FACTS

The Respondent is a manufacturer of fabric reinforcing mesh in Tipperary town.  The Complainant commenced employment with the Respondent on 17 February 2014 as Environmental, Health & Safety (“EHS”) Manager. A copy of the Complainant’s contract of employment was exhibited at the adjudication hearing.

Mr Fiacre Creegan joined the Respondent as Operations Manager in May 2022. He has vast experience in manufacturing management, especially in the area of steel processing and steel handling, having been General Manager and Managing Director of such companies in Ireland.

When Mr Creegan joined the Respondent one of his tasks was to review the whole area of operations i.e., production, health and safety, quality, and maintenance, and consider what changes would improve the company. The Respondent’s manufacturing processes are very limited and it’s a repetitive volume manufacturing company. During his review, Mr Creegan could not understand the reason that there were so many senior managers when there were only about 25 operators on the factory floor over three shifts. In his years of experience running a company with a lot more people, a lot more processes and more complexity, Mr Creegan did not have the need for a dedicated EHS Manager nor did he have the need for a dedicated Maintenance Manager. Following Mr Creegan’s review, changes were introduced to all areas reviewed. Organisation charts showing the changes were exhibited at the hearing.

In relation to the EHS role, when Mr Creegan took a deeper look at what was involved and required of the EHS Manager role, he felt that the role could be absorbed by other existing roles and that his own role could oversee it. Mr Creegan was of the opinion that this proposed change was more efficient and cost effective for the business. He was of the view from his extensive experience that the Respondent did not require a dedicated EHS Manager role. Therefore, he put the EHS role at risk of redundancy.

The Complainant attended an information meeting on 15 August 2022 with Mr Creegan and he was informed that his role was at risk of redundancy. Mr Creegan informed the Complainant of the review he carried out and outlined to the Complainant the business reasoning as to why his role was being put at risk. Mr Creegan informed the Complainant that he was now entering into a consultation process with the Complainant, and he sought the Complainant’s proposals and input to avoid the redundancy and also in relation to alternative roles for him. Mr Creegan reassured the Complainant that no final decision had been made in relation to the Complainant’s role.

The Complainant was invited to an initial formal consultation meeting on 18 August 2022 and was informed that he was entitled to bring a work colleague to accompany him to the meeting. After the meeting Mr Creegan sent the Complainant a letter setting out the above information.

The Complainant spoke with Mr Creegan on 16 August 2022, and requested a postponement of the meeting. Mr Creegan facilitated this request and rescheduled the first consultation meeting with the Complainant for 22 August 2022. The Complainant had been informed of his right to bring a work colleague with him but he declined to have a colleague accompany him at the meeting. At the meeting on 22 August, Mr Creegan outlined that the purpose of the meeting was to inform and consult with the Complainant as to whether a redundancy could be avoided and to see whether there was a suitable alternative employment within the business. Mr Creegan explained that the Complainant’s role was being put at risk of redundancy on foot of an overall business review that he carried out. Mr Creegan reiterated from the information meeting with the Complainant on 15 August 2022, that the health, safety and environmental needs of the business had changed over the years. He indicated that given the size and nature of the Respondent, the health and safety function was resourced in his opinion to a very high level outside the norm in the steel processing industry. Mr Creegan stated that the necessary systems set up by the Complainant were embedded and that going forward these systems only needed to be maintained and managed. Mr Creegan told the Complainant that, in his view, maintaining and managing the systems did not require a dedicated EHS role and certainly not a dedicated managerial role. Mr Creegan explained to the Complainant that it was proposed that he could take care of the oversight of the health and safety role and that the incoming Production Manager, who was taking over from the retiring Production Manager, would also play a role in these matters. It was further suggested by Mr Creegan that a member of the production floor staff could be upskilled to deal with some aspects. Mr Creegan informed the Complainant that at some point in the future a dedicated health and safety person at a much more junior level may be sought. However, Mr Creegan stated that this was the possible future structure and no final decision had been made on the matter.

The Complainant queried whether a similar review had been carried out in other aspects of the business and what drove the need for the review. Mr Creegan explained that the operations role covered a number of aspects but the main areas being Production, H&S and Maintenance and that similar reviews had been carried out in those areas. Mr Creegan further explained that it was his task as Operations Manager to examine the key operational areas of the business and make suggestions for how the business should run in to the future. He explained to the Complainant that as the EHS manager role was a stand-alone role and was not in a bigger pool that there were no selection criteria applied.

The Complainant was asked whether he had any suggestions as to how a redundancy situation may be avoided or whether he had any suggestion for suitable alternative roles. The Complainant responded that it was up to Mr Creegan to propose roles if there was any.

The Complainant queried again the nature of the health and safety role required in the future and what it might look like. Mr Creegan reiterated that no decision had yet been made but if at some stage in the future the Company decided to take on such a role it would be a much more junior person and level. The Complainant queried whether the Company was seeking for him to operate at a lower level and was that an option. The Complainant also gave the view that operating the role by a less senior person flies in the face of the continuous improvements methodology, and he could not understand this decision. The Complainant did not take on board that the proposal was not to replace the Complainant with a junior person but that he EHS role would be absorbed by existing employees and that the Respondent may at some future point engage a EHS person but if such a role was required it would not be the same role as the Complainant’s role but would be a more junior role if even required. As to other suitable roles, the Complainant queried whether the Sales Manager had retired or whether he was due to retire. Mr Creegan responded that the sales process of the Respondent did not fall within his remit, but he would follow up on this.

On 23 August 2022, Mr Creegan sent the Complainant an email enclosing the minutes from the meeting asking the Complainant to review the minutes and to follow up with him if he had any questions or queries in relation to same. Mr Creegan also sought to set up a further consultation meeting for Friday 26 August 2022 to go through the matters and queries raised at the first consultation. Mr Creegan outlined to the Complainant again that he was entitled to be accompanied to the meeting.

The Complainant responded by email on 24 August 2022 with comments and clarifications in relation to the minutes. He made a reference that he had experience in lean methodology and may be able to assist in developing this. Mr Creegan responded to the Complainant on 26 August 2022, noting his comments and advised that his email would be attached as an appendix to the minutes of the meeting.

It was agreed between the Complainant and Mr Creegan that the second consultation meeting would be rescheduled to 5 September 2022. The Complainant was unaccompanied and confirmed at the meeting that he did not wish for anyone to accompany him. Mr Creegan outlined that the purpose of the meeting was to discuss any queries or questions arising from the first consultation meeting and the email query which the Complainant had sent to Mr Creegan regarding the minutes from the first Consultation Meeting. Mr Creegan explained again to the Complainant why there was no selection criteria being applied or discussed. He explained that selection criteria would be applied if there were a number of similar roles within the Respondent and they would all be put ‘at risk’ of redundancy and selection criteria applied. However, in relation to the Complainant there was only one EHS role and therefore if the role was to be made redundant that there was no requirement to apply selection criteria as there was no other EHS role to select between. Mr Creegan responded to a query raised by the Complainant in the first consultation meeting in relation to Mr P, Supervisor taking over the Production Manager role upon the incumbent’s retirement. Mr Creegan also confirmed to the Complainant that the Sales Manager, which the Complainant queried about, was not retiring or expected to retire soon.

The Complainant queried what Mr Creegan meant by the EHS role being “highly resourced”. Mr Creegan explained that from his experience in steel companies that the EHS role would not be a dedicated role and would be carried out by employees who carried out other functions. He also stated that in some cases that the EHS duties would be carried out by a junior employee who also held other functions and would be supported by an external specialist as and when needed. Mr Creegan said that in this way, the Respondent having a dedicated managerial EHS role was highly resourced compared to other organisations in his experience. The Complainant queried if he was doing something that was ‘unnecessary’ or ‘over and above what’s required’ but this is not what Mr Creegan said. Mr Creegan responded to the Complainant that “in some ways the outlook on how the system could be run as opposed to how it is being run could be just one person’s opinion vs another person’s opinion.”

The Complainant pointed out to Mr Creegan that while he was making reference to other companies in steel processing, that the correct comparison should be the Celsa companies in the UK who carried out the same processes. Mr Creegan said that he would consider this suggestion.

The minutes of this meeting were sent to the Complainant on 6 September 2022 and the Complainant responded with additions and comments on the minutes by email dated 7 September 2022. However, the Complainant copied this email to the Managing Director of the Respondent, Ger Dee and external HR Consultant, Sinead Grehan, neither of which had been part of the consultation process. Mr Creegan emailed the Complainant on 8 September 2022 informing the Complainant that he is managing the process, that he should not have copied these individuals and that he would not receive a response from them.

Mr Creegan emailed the Complainant the day after the second consultation, 6 September 2022, in relation to the point raised by the Complainant at the meeting in respect of comparing the Respondent to Celsa companies. Mr Creegan explained in his email that having considered the Complainant’s point in relation to other Celsa factories that there was no ‘like for like’ comparison as different companies use different methods, have different rules, different workforce and skill level etc. He also pointed out that other Celsa plants are much bigger than the Respondent and have many more rolling lines, more employees and produce way more tonnage than the Respondent. Mr Creegan’s email went on to explain why he compared the Respondent to other factories in the steel processing sector. Mr Creegan finished the email by stating that “While I acknowledge your comment and opinion on this matter, I feel that the point of view that I’m adopting in relation to a general comparison with other factories in the steel processing sector, is honest, valid and accurate. I trust this deals adequately with the query your raised.”

The Complainant responded to Mr Creegan’s above email on the same date, stating that he never requested a ‘like for like’ comparison with Celsa companies. In his email, the Complainant asked Mr Creegan what he believes that the Complainant is doing that is “unnecessary or not needed”. He also asked Mr Creegan what he means when he says that his EHS role is “over resourced”. Mr Creegan responded to the Complainant’s numbered queries by email dated 7 September 2022 stating:

1.       I am not aware of the EHS resources at the Rom, Lichfield or Barnsley factories. My review has been based on the EHS needs of BRC McMahon.

2.       I do not consider that any of the current EHS tasks are ‘unnecessary’. My review has identified different ways in which the ESH tasks can be carried out going forward.

3.       I don’t recall using the term ‘over-resourced’ but do recall referencing the EHS role as being ‘highly’ resourced. In any event I do not consider that we are ‘over-resourced’ in relation to the EHS role. As above, my review has identified a way in which the EHS tasks can be carried out going forward.

The Complainant responded to Mr Creegan’s above email on 8 September 2022, again copying the Managing Director of the Respondent, Ger Dee, and an external HR Consultant, Ms Sinead Grehan, with comments in red after each of the numbered points in Mr Creegan's email as follows:

1.       You have never told me what these needs are, please tell me what these needs are??

2.       You have never told me what these different ways in which the EHS tasks can be carried out going forward are, please tell me what these different ways are??

3.       If you do not consider we are ‘over-resourced’ or “highly” resourced in relation to the EHS role, why have you said “the role at some point in the future, there might be merit in taking on a dedicated role H&S person but in a much more junior role than currently exists” and “that the T’s and C’s that would come with the role would be way reduced too”. This is a direct contradiction of your other statement where you stated that “the review was not financially led but cautioned that if the redundancy goes ahead and if there is a financial benefit to the company, it is a byproduct and not the objective”.

Mr Creegan emailed the Complainant on 8 September 2022 reminding him that he should not have copied Mr Dee or Ms Grehan and that if he continued to do so that it may become a disciplinary issue. The Complainant responded on 9 September 2022 that he felt the tone of Mr Creegan’s email was intimidatory and threatening. Mr Creegan clarified by email of the same date that his email was not intended to threaten or intimidate the Complainant but that he would kindly request that he adheres to the instruction re copying Ms Grehan and Mr Dee.

On 9 September Mr Creegan responded to the Complainant’s queries of 8 September. In response to the Complainant’s first two points, Mr Creegan explained again that the environmental, health and safety needs of the Respondent had changed to maintenance related and no longer required a senior EHS manager role to oversee them. He explained that the tasks can be absorbed by other existing members of management team whose roles are essential to the business moving forward. Mr Creegan referred to minutes of the meetings where he explained the proposed new way of carrying out the EHS duties and what roles would take on the tasks.

In response to the Complainant’s third point, Mr Creegan reiterated that it was a ‘business led review’ and that the business will continually review their resource requirements and that this may identify a need for a junior EHS resource at some stage in the future but this was not how the Complainant’s role was being proposed to be carried out.

On 12 September 2022, Mr Creegan notified the Complainant in person that unfortunately his role as EHS Manager was being made redundant. Mr Creegan handed him a letter setting out the reasons for same. Mr Creegan reiterated fully why the role of EHS Manager had been put at risk of redundancy and the reasons for same. Mr Creegan also detailed the queries which the Complainant had raised during the consultation process and at the consultation meetings of 22 August and 5 September 2022. Mr Creegan also concluded that there were no alternative vacancies or employment/redeployment opportunities within the Respondent at that time. Furthermore, no alternatives to redundancy or proposals had been put forward by the Complainant during the process. The Complainant was also informed in the letter that he had right to appeal the decision and was given 7 days within which to submit the reasons/ basis for his appeal to Mr Stephen Mulhall, Finance Director, Deravoya Holdings Ltd, who would be hearing his appeal.

The letter informed the Complainant that he would be paid in lieu of his notice in the amount of €6,148 and was not only paid in lieu of his outstanding annual leave but he was also paid in lieu of annual leave that he would have accrued if he had worked his notice in the amount of €4,765. The Respondent included the Complainant’s monthly car allowance when calculating the Complainant’s notice and annual leave payments. The Complainant received his statutory redundancy payment in the sum of €11,004. He was also informed that he would be kept on the Respondent’s health insurance scheme beyond his termination date up to the date of renewal being 31 December 2022.

The Complainant was also offered an ex-gratia amount of €19,988 together with an amount equivalent to his annual bonus pro-rata up to the termination date in the amount of €8,660. Both the ex-gratia and the pro-rata bonus payments were conditional on the Complainant signing the Waiver and Release and were consideration for same. The Complainant did not sign the Waiver and Release and therefore did not receive these payments.

Before Mr Creegan met with the Complainant to inform him of his decision and to give him the letter, he noticed that the Complainant was clearing out boxes and files from his office and shredding documents through the course of the day. At the end of the meeting with the Complainant, in or around 4pm, Mr Creegan informed the Complainant that he was not required to work the rest of the day and that he would facilitate him coming back in to take his belongings at a date that suited him if he wished. The Complainant said he was fine to do it there and then and that he had very little left to do, just his chair. Mr Creegan offered help, but the Complainant did not require any assistance.

The Complainant appealed the decision. The Complainant claimed that the redundancy was not genuine, he did not believe a fair and reasonable selection process had been carried out and he suggested that he had set out an alternative role in implementing Lean Methodologies which he believed Mr Creegan had not responded to. He also stated that he wished to be considered for the Junior EHS role.

As Mr Mulhall was on annual leave the week of 19 September 2022, the Complainant received an ‘out of office’ email reply stating that his email would be addressed by Mr Mulhall upon his return.

On 26 September 2022, upon his return from annual leave, Mr Mulhall emailed the Complainant formally acknowledging his appeal. Mr Mulhall requested to meet with the Complainant on Thursday 6 October 2022. Mr Mulhall stated that Property Manager would also be attending as note taker and that the Complainant was entitled to bring a work colleague/ representative with him to the appeal meeting. The Complainant was further informed that no decision would be made on the matter until the appeal hearing had taken place.

On 29 September 2022, Mr Mulhall received a letter from the Complainant alleging that Mr Mulhall, as part of top management of the Respondent, had been involved in the sanctioning of his redundancy. The Complainant also sought to introduce new grounds to the appeal and sought a change of venue for the appeal hearing. The Complainant also objected to the attendance of the Property Manager as note taker as he alleged that she was a lawyer and stated that it was his preference to meet with Mr Mulhall alone.

The following day, 30 September 2022 Mr Mulhall responded fully to the Complainant’s letter and queries. Mr Mulhall stated that he was not aware of or involved in any redundancy or process that involved the Complainant until he was requested to hear the Complainant’s appeal. He also entirely refuted the Complainant’s suggestion that the Complainant’s redundancy had been sanctioned by top management of the Respondent, as Mr Mulhall is part of the top management and had no knowledge of it. Mr Mulhall stated that he would listen to any additional points the Complainant had made in his letter of 29 September, to include that he was asked by Mr Creegan to leave and clear his desk with 20 minutes notice on 12 September 2022. Mr Mulhall stated that he would also seek a response from Mr Creegan on this point.

In relation to the Complainant’s request for a change of venue, Mr Mulhall stated that the boardroom at the head office of the Respondent in Limerick had sufficient space to socially distance, and it offered a discreet and confidential space in which to conduct the appeal hearing. Mr Mulhall also stated that the Respondent had no issue with paying for any travel/subsistence expenses the Complainant incurred in travelling from Tipperary to Limerick.

In relation to the Complainant’s objection to the Property Manager being present, Mr Mulhall reiterated that she would be present as note taker only and was not a solicitor/ lawyer. Mr Mulhall also proposed that they could take as long as is necessary in agreeing the notes of the meeting that day and reiterated that the Complainant could nominate a colleague to attend the meeting with him.

On 3 October 2023, the Complainant responded by email to Mr Mulhall agreeing to attend the appeal meeting on 6 October 2022 in Limerick. The Complainant accepted the presence of the note taker and requested to bring the Sales Administrator as his notetaker. The Complainant also requested a copy of Mr Creegan’s statement in relation to his perspective of the events of 12 September 2022 in advance of meeting with Mr Mulhall. The Complainant also stated that he had three items of property to return to the Respondent. He also referred to what he believed was an unlawful deduction from his salary in 2020. The Complainant confirmed the points of his appeal, with the addition of his interaction with Mr Creegan on 12 September, together with an additional four questions which he wanted answered during the appeal meeting.

On 4 October 2022, Mr Mulhall responded to the Complainant confirming the Complainant’s agreement to the meeting being held in Limerick on 6 October 2022 and that the Sales Administrator would be requested to attend as the Complainant’s note taker. He also confirmed that he would be requesting a statement from Mr Creegan following the appeal meeting with the Complainant so that he fully understood the Complainant’s appeal before raising queries with Mr Creegan. Mr Mulhall reassured the Complainant that any statement would be shared with the Complainant and he would be given the opportunity to respond. A named Accountant agreed to attend the meeting with the Complainant in lieu of the Sales Administrator.

Mr Mulhall met with the Complainant on 6 October 2022 at the Respondent’s head office in Limerick for the purpose of the appeal meeting. Mr Mulhall clearly outlined all information which had been received from Mr Creegan in relation to the redundancy process and the Complainant in relation to the appeal of the decision to make the Complainant’s role redundant. Mr Mulhall addressed all 8 appeal points with the Complainant and asked questions where clarification was necessary. On conclusion of the meeting, the respective notetakers, reviewed the minutes of meeting and these were then signed by both Mr Mulhall and the Complainant.

Mr Mulhall wrote to Mr Creegan on 10 October 2022 seeking his view on a number of the appeal points and of the events of 12 September 2022, which the Complainant had requested to be added to his points of appeal. Mr Mulhall shared the response of Mr Creegan with the Complainant by email on 12 October 2022, and gave the Complainant an opportunity to comment or respond to the statement. The Complainant sought an extension of time to respond to Mr Creegan’s statement and Mr Mulhall facilitated this. The Complainant reverted to Mr Mulhall on 17 October 2022 stating that he had no comments to make on the statement of Mr Creegan in relation to his view of events on 12 September 2022. Mr Mulhall responded to the Complainant on 18 October 2022 informing him that he would consider everything and proceed to make his decision.

On 20 October 2022, Mr Mulhall issued a comprehensive decision in the relation to the Complainant’s appeal of the decision to make his role redundant. Mr Mulhall outlined the documentation which he reviewed during the appeal process including the statement from Mr Creegan. Mr Mulhall addressed each of the eight points, including the original points of appeal and the subsequent questions the Complainant had sought to add to his appeal. Mr Mulhall found in relation to each points, as follows:

1.       You believe the redundancy was not genuine. The process is making you redundant and not your EHS Manager role which will be done by others.

Mr Mulhall found that Mr Creegan had clearly explained and highlighted that following a full review of the roles within the business, that selection was not applicable in this instance as he was the incumbent in a singular role. He also found that Mr Creegan had outlined to the Complainant during the consultation process why the role was at risk of redundancy, “because of the manner in which the EHS requirements of the business would be carried out going forward”. Mr Mulhall found insufficient evidence to uphold this aspect of the appeal.

2.        You believe a fair and reasonable selection process was not carried out. The Complainant expanded on this point during the appeal and stated that he believed he was selected for redundancy on the basis that he had previously raised a grievance with Mr Dee (the Managing Director of the Respondent), as he believed had there was an unlawful deduction made from his salary. Mr Mulhall referred to the statement from Mr Creegan which stated that he was unaware of the any grievance in 2020, as he had joined the Company in May 2022. Mr Mulhall found that there was insufficient evidence to uphold this point of appeal.

3.       Regarding alternative vacancies:

·       You suggested a role for yourself in implementing Lean Methodologies but that was not responded to by Mr. Creegan.

·       You saw in the advertised role description and responsibilities for the operations manager included “Implementation of Business Improvements through Lean, Quality and EHS”, and believe you are very well suited to contribute greatly on this as part of your future role in BRC McMahon.

·       You wish to be considered for the role mentioned throughout the redundancy process i.e., the Junior EHS role; you are the best candidate to carry out the role and function given your familiarity and knowledge with the current integrated SHEQ management system, as you designed and implemented this system to attain approval from 3rd party auditors which will remain a requirement into the future for BRC McMahon Tipperary and Cookstown.

Mr Mulhall acknowledged that whilst the Respondent should explore and consider alternatives to redundancy as part of the redundancy consultation process, any such roles must be required by the business and be feasible for the business. Having reviewed all of the documentation including the additional statement from Mr Creegan, and his discussion with the Complainant, Mr Mulhall found that the roles outlined by the Complainant did not currently exist and/or were not required by the Respondent at that time, be it on a full-time, part-time, fixed-term or temporary basis. Mr Mulhall confirmed that Lean Methodologies was part of a wider role of the Operations Manager and that a junior EHS role was only a possibility at some stage in the future. Mr Mulhall concluded that there was insufficient evidence to uphold this point of appeal.

4.       You just got 20 minutes notice from Mr Creegan, Operations Manager in BRC McMahon on the afternoon of Monday 12 September 2022 to clear your desk, leave the site and not to return. Mr Mulhall having reviewed the statement of Mr Creegan on the events of 12 September from his perspective, which were not amended or disputed by the Complainant, did not find sufficient evidence to uphold this aspect of the appeal. Mr Mulhall noted that it was not in dispute that Mr Creegan called to the Complainant’s office and informed him that he was not required to work his notice and it was offered to the Complainant that he could leave the office that day and return at another time in the future. Mr Creegan made attempts to contact the Complainant in the following days but all attempts were futile.

5.        Why is the role of EHS Manager redundant?

6.       Why have the needs of EHS changed in BRC McMahon and what are these needs?

7.       Why was it that only my role was selected for redundancy?

8.       Is the reason for my redundancy based on financial reasons?

In relation to questions 5 - 8, Mr Mulhall invited the Complainant to expand on these questions during the appeal meeting. The Complainant stated that he did not want the opinion of Mr Mulhall on these questions but wanted them answered by the people who had made the decision. Mr Mulhall attempted to explore points 5-8 further with the Complainant following an adjournment, however the Complainant stated again that he wanted the answers from the persons who made the decision and on receipt of the answers he would review them. Mr Mulhall having reviewed all of the documentation, was satisfied that the appeal points 5-8 were all clearly addressed during the redundancy process. Mr Mulhall noted further in relation to each point:

In relation to point 5, Mr Mulhall noted from the minutes of the meeting of 22 August 2022, that Mr Creegan “outlined the reasons for the redundancy was being considered in the first place, and that this was on foot of an overall business review which FC has carried out”. This was addressed again in email correspondence with Mr Creegan on 24 August 2022 wherein Mr Creegan advised that “the primary reason this redundancy is being considered is because HSE needs of the business have changed”.

In relation to point 6, Mr Mulhall stated that his understanding was not that the needs of the business had changed but rather the manner in which the EHS requirements of the business would be carried out going forward would change. Mr Mulhall noted specifically email correspondence with Mr Creegan of 9 September 2022, he pointed out “that the HSE needs of BRC McMahon are now maintenance related (i.e. maintaining the HSE systems which have been embedded over her last number of years and no longer require a senior EHS Manager to oversee same. In many cases, the tasks can be absorbed by other members of the management team…. “

In relation to point 7, Mr Mulhall stated from his review of the documentation, the EHS role as previously performed by the Complainant is no longer required by the business and the review undertaken by Mr Creegan identified other ways in which EHS tasks could be carried out going forward. Mr Mulhall also pointed to his answer in relation to Point 1.

In relation to Point 8, Mr Mulhall noted that the answer to this question was previously dealt with in correspondence and pointed to the minutes from the second consultation meeting of 5 September 2022, and the insertion made by the Complainant to the minutes which stated - “ FC also stated that the review was not financially led but cautioned that if the redundancy goes ahead and if there is a financial benefit to the company, it is a by product and not the objective.”

Mr Mulhall conducted a full and thorough redundancy appeal with the Complainant and responded to all queries and added additional points to the Complainant’s original grounds of appeal, to be considering during the appeal meeting.

The Respondent discovered that the Complainant had wiped the work laptop and mobile phone and reset them to factory settings. This deleted vital documentation and reports which were required by the Respondent and which were not saved elsewhere. In order to restore these documents, the Respondent was required to engage an external consultant. The Respondent notified the Complainant of this engagement to explain this requirement after the redundancy.

The role of Compliance Officer was advertised on 2 March 2023, copy was exhibited at the hearing. This role included duties that the Complainant carried out. However, the role is not the same as the Complainant’s role, which was a high level EHS managerial role. The current Compliance Officer is a lower-level practical role, delivering all training in relation to manual handling, fire officer training, abrasive wheel training, over-head crane training which was previously outsourced. The Compliance Officer also assists in the compliance with standards and legislation and in maintaining ISO standards, which is overseen by Mr Creegan. The Complainant never applied for the role, although he would have been qualified for the role.

SUBMISSIONS RE UNFAIR DISMISSAL CLAIM

The Law

Section 6(1) of the Unfair Dismissals Act (“UD Acts”) provides that the dismissal of an employee shall be deemed to be an unfair dismissal “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the UD Acts specifically provides that an employee may be dismissed if that dismissal results wholly or mainly from “the redundancy of the employee”. The burden of proof is on the employer to establish the legitimacy of any redundancy dismissal and that fair procedures were followed.

The definition of redundancy is found in Section 7(2) of the Redundancy Payments Act 1967-2022 which provides that 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”, inter alia:

(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 has been employed (or had been doing before his dismissal) - to be done by other employees or otherwise, or …

(e) the fact that his employer has decided that the work for which the employee has 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."

The Employment Appeals Tribunal (“EAT”) in the case of St Ledger v. Frontline Distributors Ireland Ltd UD 56/1994 noted that the definition of redundancy has two important characteristics, namely, “impersonality” and “change”.

Charleton J. in JVC Europe Ltd v. Panisi [2012] E.L.R.70 emphasised the impersonality of a redundancy when he described it as the “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”. It is the job rather than the individual employee that is redundant. A company can be profitable and at the same time still need to make savings by way of redundancies, as evidenced by the EAT decision of Marcus Burns v Top Security Limited UD 639/2011.

Section 6(7) of the UD Acts provides that “…in determining if a dismissal is an unfair dismissal, regard may be had…to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

The leading case in relation to this is the UK EAT case of Williams v. Compare Maxam Ltd [1982] ICR 156. This case was followed by the UK Court of Appeal decision in Walls Meat Co. v. Selby where the court approved the following passage of Browne Wilkinson LJ which sets out how an employer should approach redundancy.  Speaking about the subsection in English law which is similar to the Irish provision, Browne Wilkinson LJ stated:

“For the purposes of the present case there are only two relevant principles of law arising from that subsection. First, that it is not the function of the industrial tribunal to decide whether they would have thought it fairer to act in some other way: the question is whether the dismissal lay within the range of conduct which a reasonable employer could have adopted. The second point of law, particularly relevant in the field of dismissal for redundancy, is that the tribunal must be satisfied that it was reasonable to dismiss each of the applicants on the ground of redundancy. It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy ‘as a sufficient reason for dismissing the employee’ i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal. In law, therefore, the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted.”  [1989] 1 ICR 601.

In Boucher v. Irish Productivity Centre [1994] ELR 205, the EAT held that selection criteria should be assessed “by the objective standard of the way in which a reasonable employer in these circumstances, in that line of business, at that time would have behaved.”

Submissions

In this case, the Complainant’s role was put at risk of being made redundant following a review, which identified the role as one which could be done more efficiently by being carried out by existing employees in addition to their existing work. The review was conducted by a new Operations Manager, Mr Creegan, to identify and introduce necessary changes in the business to improve its efficiency. Mr Creegan had no personal knowledge or relationship with the Complainant. Therefore, the review and the outcome of the review was impersonal and was to implement change. It is therefore submitted that this was a genuine redundancy.

It is submitted that the Respondent followed fair and reasonable procedures in respect of the Complainant’s redundancy. As set out in detail above, the Respondent:

- Had an information meeting with the Complainant at which he was informed that he was ‘at risk’ of redundancy and given the reasons why. He was given a letter explaining this to him after the meeting and he was invited to a consultation meeting and informed he had the right to bring a work colleague.

- Two consultation meetings were held with the Complainant at which the Complainant’s input and proposals were sought to avoid the redundancy. The Complainant was also asked if there were any alternative roles that he could identify. Queries about the reason for his role being at risk of redundancy were also addressed during the consultation process. Minutes of the meetings were shared with the Complainant for his comment and/or amendments. All amendments and additions were added to the minutes.

- After consideration, the Complainant’s proposals were not viable as the role he identified did not exist as a role but was part of a much larger role and while the Respondent stated that it may need a junior Health and Safety person in the future, such requirement did not exist at that time. Therefore, the Complainant was informed that his role was redundant.

- The Complainant was paid in lieu of his notice in the amount of €6,148 and was not only paid in lieu of his outstanding annual leave but he was also paid in lieu of annual leave that he would have accrued if he had worked his notice in the amount of €4,765. The Respondent included the Complainant’s monthly car allowance when calculating the Complainant’s notice and annual leave payments. The Complainant was also paid his statutory redundancy payment in the sum of €11,004. He was kept on the Respondent’s health insurance scheme beyond his termination date up to the date of renewal being 31 December 2022. The Complainant was offered an ex-gratia amount of €19,988 together with an amount equivalent to his annual bonus pro-rata up to the termination date in the amount of €8,660. Both the ex-gratia and the pro-rata bonus payments were conditional on the Complainant signing the Waiver and Release.

- The Complainant was given the right of appeal which he exercised. The Complainant’s appeal was heard by an independent person and a thorough appeal was carried out.

Mitigation of Loss

The Complainant has an obligation under the Unfair Dismissals Acts to mitigate his financial loss. It is submitted that the Complainant has failed to make any efforts to mitigate his loss. This is evident in the fact that the Complainant did not apply for the role for Compliance Officer in the Respondent which was advertised on 2 March 2023.

The Respondent refers to the letter sent to the Complainant’s solicitor on 18 August 2023 seeking details of the Complainant’s financial loss and evidence of his efforts to mitigate his loss. The letter at the time of these submissions has not been responded to.

SUBMISSIONS RE PAYMENT OF WAGES CLAIM 

The Payment of Wages Act 1991 (“1991 Act”) prohibits dedication from wages of an employee which are ‘properly payable’ as referred to in Section 5(6)(a) of the 1991 Act. 51.

Justice Finnegan in Dunnes Stores (Cornelscourt) Limited v. Laceyand others [2005] IEHC 417 found that “…the Employment Appeals Tribunal had erred in law in failing to address the question of the remuneration properly payable to Ms Lacey and Ms O’Brien, such a determination being essential to the making by it of a determination”.

Rigby v. Ferodo Limited [1988] 1 ICR 29 suggested that in deciding what is ‘properly payable’, one must look at what the terms of the contract are and decide (a) whether or not the payment was properly payable under the contract in the first place and (b) whether or not the deduction was authorised by the terms of the contract.

In respect of a bonus, the Complainant’s contract provides: “On successful achievement of objectives and targets you will receive a performance related bonus of up to 10% in January each year. Objectives and targets will be set annually, however may be changed due to business objectives and demands.”

It is clear from the above clause in the Complainant’s contract that annual objectives and targets are required to be met before a bonus is payable and that even when met, the bonus is not payable before January of the following year. It is submitted, that as the company is unable to determine the budgeted operating profit until the end of the year, it is impossible for the Complainant to achieve his targets in September. The budgeted operating profit was the substantive part of the Complainants annual target. Regardless, if he had achieved that target the Complainant’s bonus for 2022 was not ‘properly payable’ on 12 September 2022 and the Complainant was not an employee when the bonus was payable, which would not have been before January 2023.

The Complainant was offered a pro-rata bonus payment in September 2022 as an exception and as consideration for him signing the Waiver and Release but he did not sign it and therefore he is not entitled to receive such a payment. The Respondent does not pay pro-rata bonuses to its employees in the normal course. There is nothing in the Complainant’s contract of employment providing him with an entitlement to a bonus payment before January of the following year.

As the bonus was not ‘properly payable’, there can be no unlawful deduction under the 1991 Act.

CONCLUSION

It is submitted that the Complainant was not unfairly dismissed. The Complainant’s employment was terminated by reason of redundancy and the Respondent followed fair and reasonable procedures in relation to same. It is submitted that this claim should fail.

Without prejudice to the above, it is submitted that the Complainant made no effort to mitigate his financial loss.

It is submitted that the bonus payment sought by the Complainant was not ‘properly payable’ and therefore cannot amount to an unlawful deduction. Therefore, it is submitted that this claim must fail.

Summary of direct evidence and cross-examination of Mr Creegan, Operations Manager

Mr Creegan said that he joined the Respondent in May 2022. He outlined his background and previous experience.

The Witness said that, prior to joining the Respondent, his role was discussed. He said that he was to observe and make changes. He said that the review was by way of observation. From the time he joined, he kept his eyes and ears open. He said that he has plenty of experience and has a feel for things to look at and examine. Mr Creegan said that he attended meetings, read previous audits reports. His remit was production, maintenance, health & safety, and quality standards areas.

Mr Creegan said that the Respondent company is straightforward, it operates the same process and products since its establishment in the 1970s.  He said that it became apparent that for a company of the size of the Respondent there was a lot of senior management. He said that that means more complexity in the organisation if the same could be done with less.

Mr Creegan said that he looked at the maintenance and EHS roles. The maintenance role was not at risk of redundancy as there was a plan of changing a piece of equipment, to replace an element of the process that has been problematic for a while. The new machine would start operation in September/October 2022 and the Maintenance Manager would have a role in that. Mr Creegan said that the Maintenance Manager tendered his resignation in the meantime.

The Witness said that from meetings and dialog he could see that there was no reason for EHS at that level. After initial set up (7-8 years ago), there was no need for that level of seniority, all that was needed to be done was to maintain the processes and procedures. Mr Creegan said that he had no doubt that he and the Production Manager could absorb some aspects of the role, one or two factory workers could be upskilled and, if required, consultancy could fill the gap.

Mr Creegan said that he explained it to the Complainant and sent the ‘at risk letter’.

Regarding the junior role, Mr Creegan said that that it was ‘if and when’,  it would be support to all those who took on the EHS role.

Mr Creegan said that Celsia was not a valid comparator as it makes a host of different products.

Regarding selection criteria, Mr Creegan said that they would only apply if there were a number of people to select from.

Regarding the lean methodologies role, Mr Creegan said that there is no such role, it is a buzzword but a company of this size would never have a dedicated lean methodologies role.

Regarding the role of Compliance Officer, Mr Creegan said that the Complainant’s role was a high level one, advisory, nearly academic. The Compliance Officer is much more junior, hands on, basic role. It is a support role to Mr Creegan and other who deliver EHS.

Mr Creegan said that the Complainant mentioned the roles of the Sales Manager, Production Manager and Lean Methodologies as alternatives to redundancy.

Regarding the Complainant’s statement that he was given 20 minutes to leave the building, Mr Creegan said that he went to the Complainant’s office at around 4.30pm, sat down and talked calmly with the Complainant. It was 4.40pm by then and the Complainant finished work at 5pm.

In cross-examination, Mr Creegan said that he had been a General Manager or Managing Director of different steel companies. He said that he was asked by the General Manager of the Respondent to observe and decide what the structure of the organisation should be, what improvements/ changes should be made. He carried out an overall review of the  business and the role and he reached the conclusion that change was required. He started the day he walked in the door and looked everywhere within the company. He confirmed that he had no documentary evidence of the review, he was not asked to produce a report.

Mr Creegan said that he looked at areas he was responsible for and looked at other roles as well. He looked at what the Complainant did, he established which parts of the role could be done by someone else.

Mr Creegan was referred to the Complainant’s contract which stipulates that assessment of working standards, relative capabilities, conduct, suitability for remaining work, skill set, length of service, etc. would be considered in redundancy situation. Mr Creegan confirmed that he did not look at those.

Mr Creegan confirmed the Complainant’s right to be accompanied but said that he possibly did not inform him of that in terms of the meeting on 12 September 2022.

It was put to Mr Creegan that there was nothing objective about how the decision on EHS role has been made. He disagreed.

Mr Creegan confirmed that prior to the decision to dismiss the Complainant, he had no plan as to how will the organisation look like in the future in terms of structure.

In re-examination, Mr Creegan said that he explained the details of his review to the Complainant. He said that he had done other business reviews  and that in this case he was not required to produce a report/document.  He said that as far as he was aware, the Complainant did not ask to see a review. He further said that the meeting on 12 September 2022 was an information meeting and there was no requirement for the Complainant to be accompanied.

Summary of direct evidence and cross-examination of Mr Mulhall, Finance Director of Derevoya Holdings Ltd.

Mr Mulhall clarified that he has no day-to-day involvement in the Respondent’s company. He said that he was asked to conduct the appeal.

Mr Mulhall met with the Complainant on 6 October 2022. The Complainant raised eight points in his appeal. He summarised points 1-4 as outlined in his letter to the Complainant. He said that the Complainant was not willing to engage in points 5-8 as people were not there to answer his questions. Mr Mulhall said that they took a break, had a coffee. He then tried again to engage regarding points 5-8 but the Complainant did not want to.

Mr Mulhall said that the Complainant was aware that his role would be shared between other people.

In cross-examination, Mr Mulhall said that he reviewed all documentation regarding redundancy that he received. He said that he did not see any documentation regarding the business/role review. He did not think that he should look at the role review.

Mr Mulhall was asked if he had ever done an operational review and he confirmed that in the period from 2007 to 2016 he did one every six months.

He confirmed that, as far as he was aware, the business was not in crisis.

It was put to Mr Mulhall that he stated in his letter of 20 October 2022 that Mr Creegan had conducted a review of the roles but he did not see and did not ask for any review. The Witness said that he believed that a review was conducted as a result of which the EHS role was made redundant.

It was put to the Witness that the role review was personal. He said that the Complainant never raised this at the appeal stage.

Mr Treanor BL, on behalf of the Complainant submits as follows.

The Complainant was employed as a Health, Safety and Environmental Manager from 17 February 2014 until 12 September 2022.

Without notice on 15 August 2022 the Complainant was informed that his role was at risk of redundancy. At this brief meeting the Complainant was provided with a letter which states,

"[t]he primary reason this redundancy is being considered is because the [Health, Safety and Environment] needs of the business have changed."

On 22 August 2022 the Respondent met with the Complainant to discuss the proposed redundancy. Mr Creegan (Operations Manager) stated in that meeting, without any certainty or evidence that "Other companies in the [construction steel industry] sector would probably have a much more junior H&S person."

Also of note in this meeting was that there would be new recruit to the role of Production Manager when the current Works Manager retired. There was no official announcement of this role, nor was it advertised internally or externally. It was now being proposed that the incumbent Production Manager would take on some of the responsibilities that had been the duties of the Complainant. The Complainant was not informed that the creation of this role would ultimately lead to his role being made redundant. The Complainant was not afforded an opportunity to apply for this role. It was also clear from this meeting that another role, incorporating the responsibilities of the Complainant, was being created, though the Respondent did not commit to any precise details of this plan when the Complainant inquired, the Respondent stated, "A person with a Level 7 and some industry experience, or related trade experience combined with management experience might work."

While the Complainant's qualifications exceed this level, the Complainant largelyadequately met these criteria.

On 5 September 2022 the Respondent met with the Complainant to discuss the proposed redundancy. Mr Creegan was asked to explain the objective criteria upon which the Complainant's role was being made redundant. Mr Creegan was unable to do so. Mr Creegan stated that objective criteria were required only in the event that there was a cohort from whom a certain number may be selected for redundancy. Mr Creegan failed to explain the basis upon which the Complainant's role itself was being made redundant. The minutes of this meeting do not disclose any industry comparator against which the Respondent reached the conclusion that the Respondent was "over resourced" in having the Complainant as an employee. The Complainant drew attention tothis fact in pointing out "[he] has always been successful in meeting the requirements of both sets of auditors [ISO and Celsa] but has never been told that he's doing something that's "too high" or "over and above" what is required."

The Respondentfailed to consider an appropriate comparison in deciding that someone less skilled,experienced and qualified should perform the role, and this was identified to theRespondent by the Complainant when he stated that "in order to make a correct comparison [the Respondent] should be looking specifically at the Celsa companies in the UK who are carrying out the same processes to the very same audit standard and it's a crosscheck against these companies which would be a valid comparison."

Mr.Creegan, in his email of 7 September 2022 stated that "I am not aware of the EHS resources at the ROM, Lichfield or Barnsley factories." When this specific concernwas raised by the Complainant with the Respondent, the Respondent failed to makethe minimum inquiries.

On 12 September 2022, without notice and without the opportunity to beaccompanied, Mr Creegan summoned the Complainant to his office and issued thedetermination that the Complainant's role was made redundant.

The Complainant appealed this decision. An appeal hearing was held on 6 October 2022. The appeal was conducted by MrStephen Mulhall, Finance Director of Derevoya Holdings Ltd.

On 20 October 2022 the Mr Mulhall issued the outcome of the appeal. The appeal was unsuccessful.

Flaws in the Redundancy Process

The Complainant was not placed on notice that a meeting was to be held on 15 August 2022 at which he would be informed that his role was at risk. The Complainant did not have the opportunity to be accompanied by a colleague, representative or Trade Union Official.

The Respondent repeatedly references a "business review" that was conducted in respect of all roles. No evidence was presented to the Complainant of this "business review" having been conducted, the methodology utilised, the outcomes identified and the reasoning for those outcomes being identified. In depriving the Complainant of an opportunity to comment on the substance of the business review, the Respondent deprived both themselves and the Complainant of a full and accurate understanding of the business needs and the Complainant's role in fulfilling those needs.

The ground for the redundancy was that "the HSE (Health, Safety and Environmental) needs of the business had changed." No comparison was provided during the process to indicate that the needs had actually changed. The Respondent provided a mere statement that the needs had changed. For example, there was no indication to the effect "in 2021, the following tasks were performed" and in 2022 "these tasks are no longer required." There is a mere statement that the role would be performed by others.

The redundancy process failed to consider the entirety of the Complainant's role, particularly with respect to the responsibilities of the Complainant in the Respondent's Cookstown site, Ballylanders site and the environmental aspects of his function at all three sites over which the Complainant's role had responsibility.

No list of the functions performed by the Complainant was produced by the Respondent. This impacted on the fairness of the process in numerous ways:

a.       The Complainant was not able to ensure that the Respondent had fully understood the role performed;

b.       The Complainant was not able to challenge the manner in which his role was to be distributed between other workers;

c.       The Complainant was not in a position to propose other ways of working that would enable him to retain his role;

d.       The Complainant was not able to speak to additional functions that he could undertake in order to preserve his employment.

This was compounded by the Respondent acknowledging in September 2022 the need for a person performing the Complainant's role may return in 2023. This indicates that while there may have been a short-term reduction in the demands of the role of the Complainant, it was reasonably foreseeable at the time of the dismissal that the Complainant's role would be required in the future. It is the Complainant's understanding that, since his dismissal, a person had been engaged in a full-time capacity in a role largely identical to that performed by the Complainant.

The Respondent's decision references an industry standard for the performance of the EHS role within an employer of the Respondent's scale, however, the Respondent provided no evidence to support this supposed industry standard to enable to Complainant to address this conclusion.

The Respondent asserts that an overall operational review was conducted, as alleged in the letter of 12 September 2022. No evidence of this operational review was tendered in order that the Complainant could respond adequately to the overall changes and make alternative proposals.

Part of the reasoning put forward for making the Complainant's role redundant was the fact that the EHS role had been executed so effectively that it was no longer required. Read in conjunction with the Respondent acknowledging that the role would possibly return in the following year, this indicates that there was not a business decision to make the role redundant but rather that there would be a future business need for the Complainant's role but the Respondent preferred to dismiss the Complainant and recruit an alternative employee to that role in the following months. This tends to show that the decision was motivated by reasons other than a genuine redundancy situation.

The Respondent states "the review was not financially led but cautioned that if the redundancy goes ahead and there is a financial benefit to the company, it is a byproduct and not the objective." At no time did the Respondent articulate the motivation, other than financial, of the review and subsequent dismissal of the Complainant. This begs the question, if not for financial reasons, why was the decision taken to dismiss the Complainant?

During the initial consultation, it was presented to the Complainant that the "needs of the business had changed." However, this was not found to be the basis upon which the redundancy decision was made at appeal. At appeal it was found that the business needs had not changed. It was instead decided that the motivation the Respondent ought to have had was that the business decided to change the manner in which business was to be done going forward. At first instance the Complainant was responding to one redundancy rationale and when, on appeal, this this rationale was absent, a second rationale was created by the person conducting the appeal and substituted for the initial rationale. This renders questionable whether there was any actual redundancy rationale at all. If there was such a rationale, the Complainant was deprived of the opportunity to engage with the actual reasoning for the purported redundancy at consultation. This shows that the appeal was not truly impartial but instead motivated towards an outcome preferred by the Respondent. Further it shows the entire process was fundamentally flawed as it changed the basis upon which the process was conducted without giving the Complainant the benefit of fully engaging with that process.

At the time of the redundancy, the Respondent was proposing to consider employing a person to do the same or similar role to that of the Complainant in the following year, less than three months later. This runs contrary to the decision on appeal that the Respondent had decided to change the manner in which business was to be done going forward. Going forward, the Respondent was actively considering doing business in a way that would have involved a person employed in the Complainant's role.

Pay

The Complainant's contract of employment states "you will receive a performance related bonus of [15%] in January of each year."

The Respondent calculated the Complainant's bonus entitlement at the conclusion of his notice period to be €8,660.00. This payment was not received by the Complainant.

Law

Unfair Dismissal

Dismissal is not in dispute. The burden of proof is on the Respondent to show that the decision to dismiss the Complainant was justified. More particularly, as it is alleged by the Respondent that the Complainant's role is redundant, it is for the Respondent to show that the Complainant's role satisfies the definition of "redundancy" as set out in Section 7(2) of the Redundancy Payments Act 1967.

In Panisi v. JVC Europe Ltd. [2012] ELR 70 the requirement for strict proof in dismissal by reason of redundancy was emphasised. Charleton J. held:

“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 Act 1967, as amended, provides, "reasons not related to the employee concerned. " Redundancy, cannot, therefore be used as a 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”.

The "precision" set out by Charleton J. was absent in the within case. The Respondent failed to identify with precision the basis for the redundancy. The Respondent claims that the basis for the dismissal was on foot of a "business review", the content of which was never disclosed to the Complainant. Further, the Respondent failed to produce to the Complainant a list of the functions of his role that the Respondent was able to provide input on. Further, the Respondent failed to provide to the Complainant an explanation of how the functions he performed were to either cease to be performed or be reallocated to another worker so that the Complainant could address same.

The failure of the Respondent to substantiate a genuine case for redundancy, and in particular, the failure to provide the business case for redundancy shows the fatal "vagueness" of the Respondent's process.

Indeed, the initial justification was that the needs of the business had changed. This was not found to be the case on appeal. A new justification was adopted at appeal that there was to be a change in the manner in which business was to be done going forward.

This is the "vagueness" that Charleton J. cautioned against. An employer cannot rely upon one justification for dismissing an employee at first instance and simply substitute a new justification when, on scrutiny, the initial justification is without merit.

As a matter of procedural fairness, an employee is entitled to know not only the reason for their dismissal, but the basis upon which the decision to dismiss was reached.

With respect to7(2)(a) the Respondent remains a successful business and so does not apply.

With respect to 7(2)(b) the Respondent continued to require employees to carry out work of the kind the Complainant was carrying out in the locations where the Complainant worked.

With respect to 7(2)(c) the Respondent had made no decision as required by this subsection, as indicated by the possibility of hiring a person to perform the function of the Complainant being actively considered.

With respect to s.7(2)(d) it is the Respondent's position that the Complainant was excessively qualified and experienced to perform the role he was employed to perform.

With respect to s.7(2)(e), the Complainant was qualified, experienced and trained to perform the roles of those who would be performing his role until such time as the Respondent recruited a person to replace the Complainant.

Meenan in Employment Law (2nd Ed. 2023) cites St. Ledger v. Frontline Distributors Ltd. [1995] E.L.R. 160 in relation to what is required for there to be a genuine redundancy. In that case it was held "Redundancy has two characteristics which are of importance in this case. It is impersonal and it involves change." The decision goes on, "this means change in the workplace". The Respondent had not settled on any "change" in the workplace during the redundancy process. No change had happened and any change caused by the dismissal of the Complainant was possibly to be undone in short order by the hiring of a replacement.

In Keenan v. Gresham Hotel (UD47811988) it was held by the Employment Appeals Tribunal that the diminution of work requirement in s.7(2)(b) must "at or within a short time after the alleged redundancy" as "otherwise an employer who merely expects that his requirements for employees to do work of a particular kind may diminish at some distant time in the future could greatly reduce the redundancy entitlements of such employees by serving [notice of potential redundancy] on them prematurely."

In the within case, while the Respondent represented to the Complainant that there was a reduction in the requirements for the Complainant to carry out the work he was employed to so, while simultaneously acknowledging that in the not too distant future there would be a need to employ a person to perform the Complainant's role. To the extent that there was to be any change in the business at all, it was not believed by the Respondent that this change would be permanent, or at the very least the Respondent acknowledges that the purported redundancy situation may not persist for a significant length of time.

From the outset of his employment, the Complainant was qualified and capable of performing his role. This was recognised during the redundancy process by the Respondent. The Respondent's justification for dismissing the Complainant was not financial, as indicated in the appeal of the decision to dismiss the Complainant. The Respondent anticipated that the work would continue to be necessary into the future. The Respondent merely preferred that it was not the Complainant who performed the work.

In Acorn Brokerage Ltd. v. Aheante (UDD23l6) the employee was dismissed in an accelerated redundancy process. The Labour Court held that "the approach adopted by the Respondent was unreasonable in circumstances whereon the facts presented there was no pressing need on the part of the employer to accelerate the implementation of the redundancy during a period of lay-off without any process or consultation and therefore...the dismissal...was unfair." While Acorn Brokerage is factually distinct from the within case, the similarity rests with the hasty decision to dismiss the Complainant on grounds of redundancy in September 2022 while simultaneously presenting that the Complainant's role may have to be filled again in 2023.

Pay

S. 1 of the Payment of Wages Act 1991 defines wages as:

 ...any sum payable to the employee by the employer in connection with his employment, including (a) any fee, bonus or commission...referable to his employment, whether payable under his contract of employment or otherwise.

The Complainant's contract provides that the Complainant shall be entitled to a performance related bonus. The Complainant did not receive his contractually entitled bonus.

Losses

The Complainant’s last day of service was 1 November 2022. The Complainant obtained new employment on 13 February 2023. The rate of pay in the Complainant's new employment is the same as on the date of cessation of employment with the Respondent. The Complainant's losses subsequent to his dismissal was €14,159.81.

Conclusion

The Complainant was a highly skilled and successful employee of the Respondent. The Respondent dismissed the Complainant under the guise of redundancy on 12 September 2022.

Throughout the redundancy process, the Respondent repeatedly referred to an overall business review and the reallocation of the responsibilities of the Complainant.

At no time in the redundancy process was the Complainant offered an opportunity to see or comment on the business review that grounded the Respondent's cases for dismissing the Complainant.

At no time was the Complainant afforded an opportunity to review the responsibilities of his role considered in the business review to ensure they were complete and accurate.

At no time did the Respondent provide to the Complainant an explanation of how the functions of his role were to be reallocated within the business.

The Respondent initially claimed that the redundancy was on the basis that that the needs of the business had changed. There was no change in the needs of this business. This was the conclusion of the appeal of the dismissal. A second justification was adopted by the person hearing the appeal, namely that the Respondent had decided to change the manner in which business was to be done going forward.

The Complainant was provided with no opportunity to address this redundancy rationale during the consultation process.

Accordingly, the dismissal was procedurally unfair.

Further, the Respondent was, at the time of the dismissal of the Complainant, actively considering employing a person to perform the role of the Complainant. Accordingly, the dismissal was not a genuine redundancy and so factually unfair.

The Respondent failed to pay the Complainant bonus pay in accordance with the Complainant's contractual entitlement.

Summary of direct evidence and cross-examination of Mr Doheny, the Complainant

Mr Doheny outlined his experience and qualifications. He said that he was employed by the Respondent following a redundancy from his previous job. He said that he loved the job. The company had ISO but it lapsed so part of his role was to get it back as soon as possible, bring it back to good shape.

Mr Doheny said that he did not see a business/role review or any other documents except letter and email correspondence.

Mr Doheny said that the dismissal had a devastating effect on him.

The Complainant said that he secured new employment in a similar role and on a similar pay from 13 February 2023. He confirmed that he was not paid his bonus. He said that the date of dismissal was 12 September 2022. He said that he sent job applications straight away.

In cross-examination it was put to the Complainant that it is not unusual that an EHS managerial role is made redundant. He said that it is generally a secure role. He said that he was made redundant from his previous job as the company went through major downsizing and stripped out all mid-managerial jobs. It was put to the Complainant that the same happened in the Respondent organisation, managerial roles are no longer there. The Complainant agreed that it was ‘stripping out’.

Regarding the review, the Complainant said that he was told that a review was carried out but no further explanation was provided. The Complainant was referred to the minutes of the redundancy consultation meeting on 22 August 2022 which state that Mr Creegan “moved to outline the reasons the redundancy was being considered”. The Complainant said that it explains the outcome of the review not the review itself. It was put to the Complainant that he asked for what drove the need for the business review but did not ask for a copy of the review.

The Complainant said that there was a lack of clarity, the same work still had to be done, the Respondent still had to operate to the standards required, there was continuous improvement, the Respondent still had the same business needs.

The Complainant said that Mr Creegan’s email of 7 September 2022 did not clarify issues.

The Complainant said that he got the impression that it was done deal. The Complainant said that it was the busiest time of the year for him, he was overloaded and the Respondent knew about it. It was put to him that, if he was so busy and the Respondent knew about it, it would not be a done deal as he said.

Regarding mitigation of his loss, the Complainant said that he applied for a number of positions. The Complainant provided copies of some seven applications, He said that he applied for other positions but had no evidence of same.  He said that he applied for his current job in December 2022 and was interviewed before Christmas.

This is a complaint pursuant to the Payment of Wages Act. At issue is whether the Complainant is entitled to the bonus accrued for the financial year 2022.  Bonus payments fall within the definition of ‘wages’ in Section 1 of the Payment of Wages Act.

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, 

Section 5 of the Payment of Wages Act provides as follows:-

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

In Sullivan v Department of Education PW 2/1997, the Employment Appeals Tribunal took the word “payable” to mean “properly payable”, consequently it was not simply a matter of what may have been paid from the outset but all sums to which an employee is properly entitled.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

Section 5(6) of the Payment of Wages Act provides that the non-payment of part or all the wages ‘properly payable’ to an employee shall be treated as a deduction by the employer of wages due to the employee.

In Cleary v B & Q Ireland Ltd [2016] IEHC 119, the High Court considered the claimants’ entitlement to a 3% bonus and a zone allowance. The relevant contract provided that the bonus ‘may be reviewed or withdrawn at any time’ and the Court held it was ‘clear and unambiguous’. The High Court held that the bonus clause should be ‘interpreted in the overall context of the contract’ and that the bonus was not contingent on performance, profitability or other events. The High Court held that the respondent was required to exercise discretion reasonably and ‘if the discretion is exercised unreasonably the employer will be in breach of contract if no reasonable employer would have exercised the discretion in that way.’ The Court held that the discretion to withdraw a bonus scheme could not be exercised when the employee had accrued the entitlement and ‘crystallised once it was earned in accordance with the terms of the scheme as operated.’ 

In An Employer v Worker PWD1921, the Labour Court held that the contract of employment and the letter of acceptance both referred to the rules of the bonus scheme, which held ‘no claim whatsoever on any commission payments that would otherwise have been generated and paid, if they are not in employment on the date when they would normally have been paid’. The Court concluded that the bonus was, therefore, not ‘properly payable’ and also that the claimant consented to the deduction.

In Bord Gais Energy v Thomas PWD1729, the Labour Court placed “considerable weight on the fact that the complainants contract sets out the eligibility requirements for payment of the PRA and that the Complainant confirmed in evidence that he was aware that one of the criteria of the scheme required that he be in employment on the date of payment.”

In Boston Scientific v Cotter PWD1919, the Labour Court held that the employer had not “exercised its discretion in calculating his bonus for 2016 in an unfair, unreasonable or capricious manner that gives rise to a breach of the Act.”

In Commerzbank Ag -v- Keen [2006] EWCA Civ 1536, the Court of Appeal held that ‘as a matter of construction, it is clear that Mr Keen is not entitled to a bonus if, on the date of payment, he is not employed by the Bank’. This authority was relied on in ADJ-00010061, which held that terms of the scheme stated that commissions due cease on the date of the employment ends. It held that this applied whether or not the claimant received the rules of the scheme.

In the within case, the Complainant’s contract of employment was exhibited at the hearing. It provides, in relevant part, as follows:

“On successful achievement of objectives and targets you will receive a performance related bonus of up to 10% in January each year. Objectives and targets will be set annually, however may be changed due to business objectives and demands.”

No clarification of the agreed “objective and targets” was exhibited. Neither was there any clarification as to what determined the level of bonus paid “up to 10%”.

The Complainant asserted that he was entitled to a payment of €8,660.00 which was the sum offered to the Complainant in respect of the accrued pro-rata bonus as part of the ex-gratia payment subject to him signing a compromise agreement. The Respondent contended that the bonus was not properly payable to the Complainant as the Respondent is unable to determine the budgeted operating profit until the end of the year, and therefore it was impossible for the Complainant to achieve his targets in September. Even if the Complainant had achieved that target, his bonus for 2022 was not ‘properly payable’ on 12 September 2022 but January 2023. At this stage the Complainant was not an employee of the Respondent.

Having considered the matter, I note that the parties accepted that the bonus was paid annually. The Respondent’s position was that any bonus would be paid in January for the previous year. I am satisfied that the Complainant was dismissed prior to the date on which his bonus, if any was due.

Insofar as the argument that the Complainant earned his pro-rata bonus as calculated by the Respondent, I note that the Complainant’s contract of employment is silent on the matter. I further note that the Respondent’s position was that it does not pay pro-rata bonuses to its employees who leave before the date on which the bonus is paid. From a commercial perspective, there is some sense to this approach. However, from a contractual perspective, there is no provision not to pay accrued bonus to an employee who leaves before the payment date specified by the Respondent. The Complainant’s contract did not seem to contain a restriction that a bonus payment is contingent on the employee being in employment on the date of the pay-out.

It is my view that the Complainant’s contract was not clear that it was a condition of the payment of the bonus for 2022 that he remained in employment until the payment date.  I find that it was unreasonable for the Respondent not to pay the Complainant his bonus.

The bonus scheme as outlined in the Complainant’s contract of employment does not set out any metric for determining what level of bonus was payable to the Complainant having regard to his performance in any particular year.

I note that inHr Foods Ltd v Noel O' Loughlin PWD 1815 the Labour Court held that;-

“It is not for the Court to superimpose a metric on such a bonus scheme nor it is the Court’s role, in an appeal under the 1991 Act, to attempt to retrospectively assess the Complainant’s actual performance vis-a-vis his agreed KPIs”.

In the absence of any evidence to the contrary, I accept that the Complainant’s entitlement was that calculated by the Respondent of €8,660.00. 

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €8,660.00 in respect to the outstanding bonus.

The relevant Law

Section 6 of the Unfair Dismissals Act in relevant part provides:

6.—

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(c) the redundancy of the employee,

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act.

Under the Unfair Dismissals Act, redundancy has the same meaning as it has under Section 7(2) of the Redundancy Payments Act, 1967, as amended:

“(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.”

The Respondent submits that the dismissal of the Complainant was due to redundancy. The Respondent in its submission relies on Sections 7(2)(c) and 7(2)(e) of the Redundancy Payments Act, as quoted above.

The Unfair Dismissals Act deems a dismissal to be unfair unless the Respondent can demonstrate that it was neither substantively nor procedurally unfair. Where redundancy is put forward by the Respondent as the reason for termination of employment it is necessary for the Respondent to show that the purported redundancy not only meets the definition of the term but also that the Complainant was fairly dismissed by virtue of fair selection for redundancy.

In the leading case of JVC Europe Ltd v. Panisi [2011] IEHC 279 relied upon by both parties Charleton J held:

“A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. 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 cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. 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 Act 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."

Further the High Court in Panisi held:

“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.”

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854:

“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.”

In respect of fair assessment for selection, as set out in the ‘Redundancy’ chapter by Terence McCrann in Murphy & Regan “Employment Law”: ‘For a redundancy selection to be fair, objective selection criteria must be applied to the correct pool of employees. In particular, the pool of selection must be reasonably defined, and the selection criteria employed by the employer must be applied to all employees ‘in similar employment’.

In relation to the Respondent’s reliance on Section 7(2)(c) of the Redundancy Payments Act,

the Respondent submitted that, following a business review, the Complainant was made redundant due to a decision to carry out its business with fewer employees, more specifically fewer managers and that the work of the Complainant had been distributed and was being carried out by other employees. 

I accept that the Respondent is entitled to restructure its business and to reduce its workforce as is considered appropriate having regard to operational requirements and financial considerations.

However, no evidence in relation to the reorganisation, no financial or other data evidencing requirement for redundancies was offered by the Respondent.  In fact, Mr Creegan in his evidence acknowledged that at the time the decision was made to put the Complainant’s role at risk of redundancy, he did not have a plan as to what the structure of the organisation would look like in the future.  I accept that the overall number of senior managers in the area overseen by Mr Creegan, as per the Respondent’s Organisational Chart, reduced from four (Maintenance Manager, EHS Manager, Production Manager, and Corporate Finance Manager) to two (Operations Manager and Production Manager) in the period from April 2022 to July 2023. This, however, occurred as a result of two resignations post the Complainant’s dismissal (Maintenance Manager and Corporate Finance Manager). The Production Manager retired in September 2022 and was replaced by the then Supervisor. The Complainant was the only person that was considered for, and subsequently made redundant. All other changes, bar the retirement, occurred without the Respondent’s prior knowledge.

I note that the Operations Manager joined the Respondent in May 2022. In addition, a new position of Compliance Officer was created in or around March 2023 which included duties that the Complainant carried out, albeit the Respondent asserted that the position “is a lower-level practical role”.

I note that the Complainant’s Contract of Employment under the heading “Redundancy Selection Procedure” states that, in circumstances where redundancies are unavoidable, “the selection for redundancy will be based upon an assessment of each employee’s working standard, relative capabilities, reliability, conduct record, and suitability for remaining work. In addition to the Company retaining particular skill sets, length of service may be taken into account if deemed necessary by the Company”. The Respondent confirmed at the adjudication hearing that it did not adhere to this procedure.

I accept that the Respondent’s aim could well be to reduce the number of managers. However, in the absence of documentary evidence, it is not possible to establish why the Complainant’s position rather than that of any other manager within the organisation was selected for redundancy. There was also nothing put forward to show that any alternative roles have been considered. The Respondent merely stated that there were no alternative vacancies or employment/redeployment opportunities within the Respondent at that time. There was no evidence proffered in that regard. I was not presented with information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options.

The Respondent did not provide sufficient evidence to show that it carried out an open to scrutiny process and that it considered the matter thoroughly.  In my view, the absence of such evidence fatally undermines the Respondent’s position.

In relation to the Respondent’s reliance on Section 7(2) (e) of the Redundancy Payments Act, there was nothing put forward to show that “the work for which the employee has 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."

There was no dispute that the Complainant was well qualified to carry out his role. There was nothing put forward to show that another person that “was capable of doing other work for which the Complainant as not qualified or trained” was performing the Complainant’s duties following his dismissal. The Respondent appears to have made the Complainant redundant, distributed some of his duties to other employees, albeit no details were provided in that regard. It remains unclear who was assigned what specific duties. I note that the Respondent employed a Compliance Officer at a “lower level” and , presumably, lower pay  to carry out the remaining duties of the Complainant. The Respondent did not provide any details as to what qualifications or experience these individuals had which made them more suited to carry out the Complainant’s role. 

In the absence of any evidence to support the Respondent’s assertion that the Complainant’s employment was terminated due to redundancy, I find that the dismissal of the Complainant was unfair.

Redress 

Pursuant to Section 7 of the 1977 Act redress in the cases of unfair dismissal might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss. The Complainant sought compensation. Having considered the circumstances, I find that compensation is the most appropriate form of redress in the instant case.

Section 7 of the Unfair Dismissals Act 1977 – 2015 stipulates that where a complaint succeeds, redress may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment. 

“ (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …

… (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

The parties were in agreement that the Complainant was dismissed on 12 September 2022.  He obtained new employment on 13 February 2023 at the same rate of pay as on the date of cessation of employment with the Respondent. The Complainant’s weekly rate of pay with the Respondent was €1,633.88.

The Complainant furnished copies of some 7 jobs applications that he made in the period from 14 September to around 10 November 2022.

I find that the Complainant’s efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

In arriving at my decision as to the amount of compensation that is just and equitable, I have considered the Complainant’s insufficient attempts to mitigate his loss.

I decide that the Complainant was unfairly dismissed. I declare this complaint to be well founded. I order the Respondent to pay the Complainant  €27,775 which is approximately 17 weeks’ pay.

Unfair dismissal – redundancy - bonus