Complainant

Respondent

Parties

Philip Hanley

Pbr Restaurants Limited Fish Shack Cafe

Representatives

Dr. Gerald Kean

Lisa Conroy, Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042017-001

18/01/2021

The Complainant was employed by the Respondent from 18th January 2010 until 27th August 2020. When the employment ended the Complainant was employed as a Manager.

This complaint was received by the Workplace Relations Commission on 18th January 2021.

Introduction

The Respondent operates a restaurant group in Co Dublin.  The Complainant commenced employment with the Respondent on 18th January 2010.  The Complainant was around 15 years old. The Complainant at the time of the examinership was employed as a manager in Kelly and Coopers in Blackrock Co Dublin. On 27th August 2020 the Complainant’s contract of employment was terminated by reason of redundancy following a restructure of the business during the Covid 19 pandemic.  On 18th January 2021 the Complainant lodged a complaint with the Workplace Relations Commission citing a breach of the Unfair Dismissals Acts. The Respondent position may be summarised as follows:

a)       The Respondent was faced with a genuine redundancy situation following a reduction in restaurants from 5 premises to 3 and the Covid 19 pandemic.

b)      The decision to dismiss the Complainant was procedurally fair in all the circumstances.

c)       Any procedural defects alleged by the Complainant did not serve to imperil his right to a fair consultation process.

Factual Background

PRB Restaurants was incorporated by Mr Padraic Hanley in or around August 2008.  The Company entered examinership on 28th August 2019 and remained in this state to 5th December 2019.  The Respondent prior to examinership was made up of five restaurants and a mobile catering unit on Dun Laoighaire Pier.  Two restaurants, Kelly and Coopers and Ouzos, were sold to separate investors and the current Respondents purchased the four remaining units in Sandycove, Parliament Street, Malahide and The East Pier, Dun Laoghaire.

The investors placed two directors into the company, Mr Ian Higgins and Mr Colin Pardy.  The Respondent retained all staff, including the previous owner, Mr Padraic Hanley.  Mr Hanley Snr and his three sons were employed in management roles within the company.  Mr Hanley Snr was employed as a new employee having previously been a Class S Self Employed person.  Philip Hanley, Stephen Hanley and David Hanley retained their length of service as employees. 

The new investors provided these parties with a “performance incentive plan”.  This plan would allow for the expansion of units within the company and would create a class of non-voting share in the share capital of each new venture for the previous owners amongst other clauses.  This was not agreed to by the recipients.

The Company ran as normal between December 2019 and March 2020.  As the Complainant’s previous role as manager no longer existed, the Complainant became a floating manager between the remaining four sites. 

In March 2020 the Covid 19 pandemic hit Ireland.  Business in the hospitality industry were hit exceptionally hard and were forced to close due to a governmentally imposed lockdown. 

The Complainant along with many of his colleagues was placed on temporary lay-off.  During this period of lay-off there was multiple instances of interparty correspondence about a possible return to work for the Complainant.  Naturally, as a newly acquired business owners, the Respondents wished for their business to remain open to being to generate a profit.  Unfortunately, this was not the case with government guidelines.

On 4th June 2020 McStay Luby Accountants compiled an independent business review report which set out, inter alia “[a] redundancy programme together with optimization of staff rotas should be considered in order to reduce costs”.

The Respondent also commissioned an independent report by done on the business.  It was found that “The Jan/Feb results suggest that the Company might be on-track for a 2020 loss of at least €200k”.  This independent report outlined the necessity for a “Survival Plan”.  This plan included 10 ideas which would potentially save up to €290k.  The first suggestion on this plan was “the possibility of restructuring and streamlining the Head Office function which could generate annualised savings of c. €140k”.

The Respondent saw the need to restructure the business going forward.  On 18th June the Respondents created a business case for proposed redundancies.  The Respondent proposed “a reorganisation of the business, delegating significant responsibilities to in restaurant staff, elimination of central office roles, introduction of performance-based management”.

The Respondent noted six potential roles which would be at risk of redundancy.  It was laid out that “The business is advised that without reduction of fixed costs and aggressive efficiency efforts, the company may need to close.  This is a material step in that process”.

The Respondent initiated the redundancy process by holding “at risk meetings” with member of the pool of management outlined above.

The Complainant attended a zoom meeting on 10th July 2020.  At this meeting he was informed that his role was at risk of redundancy.  The Respondent informed him that “that owing to the financial difficulties faced by the company, the company finds itself in need of a restructure.  As a result, there may be potential redundancies.  The aspiration is to preserve all roles within the Company but that PH’s role is at risk”.

The Respondent informed the Complainant of the redundancy process, and that an alternative role may become available. 

A first consultation meeting was held with the Complainant on 15th July 2020.  During this meeting, the Respondent stated that “the purpose of the call was to discuss the financial circumstances of the company and his role within the company that there was likely to be a restructure required and to go through in some detail what the plans are at this point and discuss any proposals PH had”.

The Complainant enquired as to the potential new roles available, however they had not yet gone live.  The Respondent offered to talk him through the duties of same.  The Respondent during this meeting confirmed that there was no decision to make the Complainant redundant at this point but that the role as the floating manager role would likely not continue, they welcomed his application for the new role.  The Respondent stated that the goal was to preserve the job but that the role may change.

The Complainant applied for the Restaurant Operations Manager role on 12th August 2020.  It was noted that the Complainant had done no preparation and did not have any further proposals to improve margins however, he did have good experience.  The Complainant was not the most qualified candidate for the role and did not get the job.  The Complainant received confirmation of his redundancy on 27th August 2020 and was given his redundancy payment in full to the sum of €12,600.

On 1st September 2020 the Complainant appealed his redundancy.  The Complainant alleged that:

a)       The redundancy was a sham, and there was no bona fide consultation process.

b)      He was not offered an alternative role or any re-training.

c)       The decision to terminate his employment represented an Unfair Dismissal.

d)      The Respondent’s intention was to secure his dismissal because of who he was.

e)      He was being discriminated against due to who he was.

The Respondent employed Graphite HR to hear the appeal.  This was facilitated by a Mr Rob Nolan.  The Complainant was invited to an appeal on 10th September 2020.  Mr Nolan interviewed the Complainant, Mr Higgins and Mr Pardy.  Mr Nolan upheld the Complainant’s redundancy as fair.

Legal Authorities

Under the Redundancy Payments Acts 1967 to 2007 a “redundancy” situation is defined as occurring when there is a dismissal of an employee by an employer, not related to the employee concerned, and the dismissal results “wholly or mainly” from one of the following situations:

a)      “Where an employer has ceased, or intends to cease, to carry on the business for the purposes for 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)      Where the requirements of that business for an employee 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)       Where the 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 employers or otherwise.: or

d)      Where an employer has decided that the work for which the employee has been employed (or had been doing before his dismissal) should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained.:

e)       Where an employer has decided that the work for which the employee has been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained. “

In this respect, the Respondent refers to section 6(1) and 6(4) of the 1977 Act which states as follows:

(1)    “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Acct, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the 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 the Act, not to be an unfair dismissal, if the results wholly or mainly from one or more of the following:

(c)  the redundancy of the employee.

Specific emphasis is placed on the words “having regard to all the circumstances”.  On a point of law, therefore, it cannot be the case that a procedural flaw alone can render a dismissal unfair as a court or tribunal must have regard to all the circumstances.

The Respondent refers to the judgment of the Circuit Court in Elstone v CIE (13 March 1987 unreported) where it was determined as follows:

“That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of section 6 (1) that regard must be had “to all the circumstances” and not to one circumstance to the exclusion of all others”.

Furthermore, Barron J in Loftus and Healy v An Bord Telecom, High Court (Barron J) 13 February 1987 stated that with respect to unfair dismissal claims, “regard must be had to all the circumstances” and that “[t]he primary consideration is to determine the ground for the dismissal”.

Accordingly, it is submitted that a flawed redundancy procedure cannot of itself render a dismissal unfair.  It is submitted that a flawed redundancy process can only justify a finding of unfair dismissal where the flaw (s) imperilled a fair result.  It is further submitted that there was no code of practice or case law which sets out the minimum requirements for a redundancy process in every situation.  It is therefore submitted that the fairness of the dismissal must be primarily assessed against whether or not there was a genuine redundancy situation. 

In this respect, the Respondent refers to the High Court judgment in Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 where Laffoy J clearly outlined in the context of conduct related dismissals, “[t]he important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

The respondent would specifically refer to the Court of Appeal decision in RAS Medical Limited t/a Park West v The Royal College of Surgeons in Ireland [2017] IECA 228 where it held as follows:

“Fair procedures do not dictate the outcome of a process …. There are of course no absolutes in law or in life and there are occasions when the rules of fair procedures have to give way because of pressing exigencies to less considered or reflective processes”.

Accordingly, it is submitted that the primary consideration is “to determine the ground for the dismissal” and whether or not the redundancy process imperilled a fair result.

The Respondent refers to the EAT decision in Nigrell v Graham (UD690/2013).  In that case, the EAT summarised that “The respondent’s representative accepted that there was a valid redundancy situation and that the respondent’s complaints related to a failing on the employer’s part in affording fair procedures”.  The EAT went on to conclude that there could not be a finding of unfair dismissal in such circumstances, concluding as follows:

“The tribunal was not persuaded by the respondent’s arguments that in all instances an employer must:

a)      Afford the affected employee an opportunity to respond to the proposed redundancy or

b)      Facilitate the employee by having a representative present or to have the employee’s views on the redundancy fairly and impartially considered or

c)       Have a right to appeal the decision to make the employee redundant”.

“Such may be good and prudent practice and is probably found in larger enterprises.  However, the Tribunal is not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them.  Such practices may be negotiated or contractually provided for but in the instant case they are not legally required to be recognised such that a failure to do so recognise would result in a genuine redundancy being considered as an unfair dismissal”.

In this respect it is submitted the ground for dismissal was redundancy and that the redundancy was genuine and in keeping with the definitions set out in the Redundancy Payments Acts.

The respondent refers to the WRC decision in An Employee v A Builders Providers (ADJ-00003058) where the Complainant argued that his dismissal was procedurally unfair.  The WRC found that the dismissal was not procedurally flawed, determining as follows:

“However, notwithstanding the concerns raised above in relation to the notification provided to the Complainant in relation to the disciplinary hearing, the evidence before me would suggest that, from there on, the Respondent applied a careful and considered process, which meets the normal standards of fair procedure and natural justice.  This is evidenced by the following:

1.       The Complainant was provided with ample opportunity to respond

2.       And to make representations:

-          The Complainant was given access to an appeal process.

-          He was provided with the right to representation which he exercised.  He was accompanied at the disciplinary hearing by a work colleague and at the appeal hearing by full legal representation.

Based on the above, I am satisfied that, with the exception of the amount of notice given for the disciplinary meeting, the Complainant was provided the fair and balanced process, in line with natural justice”.

It is therefore submitted that, as per the Supreme Court in the Rowland case “precisely because procedural problems can be corrected” the Complainant cannot reasonably argue that his dismissal was procedurally flawed due to an issue at the consultation stage in circumstances where those concerns were addressed at the appeal.

The Complainant has also raised allegations regarding the impartiality of the Appeals Officer in his employment with Graphite HR.

The Supreme Court concluded in Mooney v An Post [1998] 2 ELR 238 that “the principle of nemo index in sua causa seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party”.

In the case of Kelleher v An Post [2013] IEHC 328, for example, a dismissed employee argued that the procedure was unfair as the Disciplinary Officer “was privy to communications … before the investigation had been completed and that he intervened in the ongoing process by having discussions with the Investigating Officer before he made his decision to terminate the employee’s contract”.  The High Court disagreed, stating that “…. In any event, as had been made clear by Barrington J. in Mooney the nemo judex rule cannot apply in all its glory to all situations in the area of employment law.  It is inevitable that often during an internal or in-house investigation leading to a dismissal the decision maker and some or all of the investigators will have some form of contact, and that there may be communication of some kind about the issues involved”.

The Respondent submits that if it is legally valid for an employer to conduct an entirely in-house investigation, disciplinary, and appeals process, where everyone was employed by the company, then it cannot be unfair for an independent third party to conduct it.

In the UK case of Walker v Respondent Way Ahead Support the Employment Tribunal summarised the issue as follows:

“The Complainant’s initial objection to Peninsula’s conducting the investigatory meeting was that the respondent paying for the service would have an impact on the impartiality of any outcome but in the event, it was conducted by Mrs Yardley-Bennett.  When on 6th May 2015 the Complainant was informed that an impartial “HRFace2Face” consultant from Peninsula would conduct the disciplinary hearing she replied that she wanted the meeting to be chaired in a transparent impartial and independent way “free from direct or indirect subterfuge … There was no evidence on which we could conclude that [the F2F Consultant] had any previous knowledge whatsoever of the case regarding the Complainant.  The Complainant has not pointed to any findings made by him which indicate any appearance of or actual bias or partiality in his conduct of the hearings or the outcome.  The respondent is a small organisation which used a discrete part of the company it used to provide it with HR advice to chair the hearings in question having done so on contractual terms which make it clear the process would be conducted on an impartial basis with no warranty of any particular recommendation.  We conclude that in the circumstances we have set out above the respondent had reasonable and proper cause to have the meetings chaired by ….  a consultant of HRFace2Face a division of Peninsula”.

However, in this instance, it was not Peninsula that held the appeal.  The appeal was heard by Graphite HR who are a separate limited company to Peninsula Business Services Ireland Limited.  The Respondent submits that this further creates a gap of impartiality.

In the alternative / mitigation

Should the Adjudication Officer find that the Complainant was unfairly dismissed which is denied, it is noted that at the time of lodging his claim on 18th January 2020 the Complainant had not taken up alternative employment.

The Complainant sent over mitigation of loss documentation on 11th March 2020.

The Complainant in this document states “… there was simply no jobs to be found”.  The Complainant states “I kept in touch with numerous restaurant people and there were no fulltime jobs”.

The Complainant gave no mention to any applications made nor gives supporting evidence of applications made. 

It is submitted that the Complainant has an obligation to mitigate his losses as per Section 7(2)(c) of the Act which states “without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regarding shall be had to – (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”.

The Respondent refers to the case of Coad v Eurobase (1138/2013) in support of this position where the Tribunal noted “in calculating the level of compensation the Tribunal took into consideration the efforts of the Complainant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD858/1999) that a Complainant 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 Complainant 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”.

Throughout the pandemic the Complainant could have applied for roles in the essential retail sector.  The Complainant alleges that he has a total loss of earnings of €44,456.  The Act only allows for losses up to 104 weeks.  However, the Complainant is seeking these losses over a period of 2020, 2021 and 2022.

Further, the Complainant has stated that he is employed as of 11th October 2022 in his mother’s restaurant.  At the time of writing this, employment is due to being seven months from now. 

Clearly an error where the date should read 2021.

The Respondent submits that the Complainant has made no real and genuine efforts to mitigate his losses.  The Complainant has failed or refused to mitigate his losses and instead has waited for a new role to arise from within his own family.

Conclusion

The Respondent submits that there was a genuine reason for the Complainant’s redundancy.

The Complainant has previous been employed as a manager in Kelly and Coopers, Blackrock.  This business was sold to a different limited company. 

The Complainant then became a floating manager between the remaining premises.  The Respondent did not need this role going forward as a part of the restructure.

The Complainant was offered the chance to apply for and interview for a role in the Malahide site.

The Complainant was unsuccessful in this.

The Complainant’s role was made redundant.

Background

PBR Restaurants Limited was a family run business, established in 2008 and run by the Hanley family.  It comprised of five restaurants and a mobile catering unit on Dun Laoghaire Pier.

In August 2019 the company was experiencing financial difficulties and in order to save the company and the jobs of its 90+ staff it was put into examinership.

In December 2019 the company successfully exited examinership and all the jobs were saved.  A new investor took over the company through a British Virgin Island offshore company. Two of the restaurants were sold during examinership to two separate investors, leaving the company with four Fish Shack café units (Sandycove, Parliament Street, Malahide, and the East Pier Dun Laoghaire).

The new majority shareholder investor  appointed two non-executive directors (Colin Pardy and Ian Higgins) to the board of PBR Restaurants Ltd.

All members of the Hanley family continued in their existing roles.  The family were told that neither of the non-executive directors would be involved in the day to day operations as they had no experience in the restaurant business.

While a deal had been agreed with Padraic Hanley and Colin Purdy on behalf of the investor regarding the family’s position in the company post examinership, the investor subsequently reneged on that deal and in February 2020 a “Term Sheet” was produced by the company which demanded that each member of the Hanley Family (including the Complainant) sign within 14 days.  The terminology used by the company solicitor was blunt and very telling “each member of the Hanley family will enter into a new employment contract on terms acceptable to the majority shareholder” and “We note the plan will terminate if not signed by all parties on or before 14th February 2020”.  The Complainant felt that this “Term Sheet” was a clear threat to his employment.

The Complainant states that he was simply an employee, but this document attempted to put him into a group they now referred to as “The Hanleys” and thereby attempted to deny him of his statutory employment rights.  Following legal advice, the Complainant along with the other members of his family refused to sign the term sheet.   Four weeks later, in March 2020, the Complainant and other family members were laid off without pay using Covid 19 as the justification.  After being laid off for 5 months without pay, in August 2020, the Complainant and the other members of his family were made redundant.  No other staff members out of a total of 50 were selected for this redundancy process or treated in this manner.

Unfair Dismissal

The Complainant was employed by the Respondent from 18th January 2010.  His employment was terminated by the Respondent on 27th August 2020.  The Complainant had over 10 years continuous service with the company.

During that ten-year period, he was trained in all areas of the business.  The Complainant started as a kitchen porter and worked his way up through the kitchen as a prep chef, a barman, a waiter and on to become a unit manager.  More recently he was a floating manager who would step in to cover other manager’s days off / holidays and deal with daily issues in the restaurants.  Additionally, he had full responsibility to monitor HACCP compliance, food quality and consistency and service quality and consistency in all the restaurants.

The reason given by the company for the termination of the Complainant’s employment was “redundancy”.  However, it is clear from the attached documentation that this was never a legitimate redundancy.  The Complainant’s employment was unlawfully terminated by the company simply because he was a member of the Hanley family who were the previous owners of the company.

No other employees, out of a total staff of 50 apart from the Complainant and the three other members of his family were selected for this purported redundancy process.

This was clearly a targeted campaign against the Complainant and his family and was never a genuine redundancy situation.

In addition to the obvious ulterior motive the lead up to the termination of his employment was completely inappropriate and lacked any due process or fair procedure.

On 25th March 2020 at the onset of the Covid 19 pandemic the Complainant was laid off without pay.  The company had no contractual entitlement to withhold his pay during lay off as he had never been presented with nor had he ever signed a contract of employment.  The new directors were aware of this and did nothing to rectify the situation other than to present the entire family with the “Term Sheet” mentioned earlier.  The letter received from Ian Higgins (Director) did not state he was being laid off without pay or provide any explanation of the selection criteria he had used to select him for lay off.  The Complainant spoke to Ian Higgins and asked him why he had been selected while the unit manager in Sandycove, who was paid significantly more than him, who had less time served in the company and had a lot less experience was kept on with full pay while the Complainant was laid off.  Ian Higgins refused to answer this question but did inform the Complainant he would not be paid.

On 20th April 2020 all staff were emailed and asked to confirm their availability to return to work. The Complainant was only one of four staff members to respond and confirm his availability.  Despite continual follow-ups by the Complainant in relation to why he was left on lay off while other staff members were being called back, he was left on layoff.  This was unacceptable.

Between April and July, the Complainant continually contacted the directors regarding his return to work.  He was aware that numerous other staff members were being actively recruited and being offered hours while he was simply ignored.  During email correspondence with the company between 20th May 2020 and 24th June 2020 he pointed out that other staff were being offered hours, and in one case, travel expenses to come back to work, while he was disregarded and left out in the cold.  Colin Pardy claimed that he offered the Complainant hours on the Pier and that he refused.  In the Complainants own words this is blatantly untrue.  Mr Pardy also denied offering one of the other employee’s hours and then went on to confirm that the travel expenses he offered to this employee were in fact to cover her DART ticket from Malahide to Sandycove.

In June 2020 the Complainant was stunned when he discovered that the company had taken on a new full-time employee who was added as an Administrator on Go-Forms (The Company HACCP sheet recording APP).  This person was a friend of Colin Pardy.

In the thread of emails to info@fishshack.ie this new employee can be seen to have been employed in a management position at a time when the Complainant was laid off without pay.  This new manager was later put in charge of the Parliament Street unit which was changed from The Fish Shack to “The Blue Oyster”.

Redundancy Process.

The Complainant was put through a protracted consultation process where, he feels, the odds were very clearly stacked against him.  He (the Complainant) engaged fully in each and every stage of the purported consultation process as he fought to save his job.  However, (in the opinion of the Complainant) this process turned out to be nothing more than a box ticking exercise orchestrated for legal cover in a blatant attempt to lawfully terminate his employment.

The first redundancy consultation meeting took place on 10th July 2020.

The second redundancy consultation meeting took place on 15th July 2020.

The Complainant was sent the job spec for a new role “Restaurant Operations Manager” that was being created by the company on 23rd July 2020.

The Complainant attended an interview for this “new role” in Malahide.

The final redundancy consultation meeting took place almost a month later on 14th August 2020.

The Complainant received a letter from Ian Higgins warning that his job was at risk on 20th August 2020.

The Complainant received a formal redundancy notice on 27th August 2020.

The redundancy process was dragged out for seven weeks.  Between mid-July and mid-August, the process stopped with little or no communication for four weeks.  The Complainant understands that one or both of the directors went on holiday during that time. 

The Complainant believes that the Covid 19 pandemic was used by the directors to lay him off without pay, with no contractual right to do so and drag out a sham redundancy process for as long as they liked at no cost to the company.  He does not believe that this would have happened in normal times where they would have had to pay me throughout the redundancy process.  He believes that the directors took full advantage of a global pandemic to unfairly dismiss him from employment under the cover of Covid 19.

There was a complete absence of any transparent or fair selection criteria in relation to selecting his role for redundancy.  Furthermore, part of the purported basis for his redundancy cited at the appeal stage referred to a “report” which was never shared with him at any stage during the consultation process.

In addition, he was not offered any alternative to redundancy even though his skill set, and experience would have been easily adapted to other roles.

During the consultation process, he was informed that the company would be rolling out the restructure plan in Malahide only.  He made the point that if this was the case, then it seemed entirely premature to get rid of his role in the supposed restructure, the Complainant did not receive an answer to this.

When the company announced they were creating a new manager role for the unit in Malahide, they called it Restaurant Operations Manager and later called it the Enhanced Manager’s role.  The job spec was the same as the Complainant’s job with less pressure as the new role was to oversee one unit.  Even though he was highly experienced and already in that role he was not offered the job.  He was told he would have to apply and interview.  The Complainant did apply and attended the interview.  He believes his knowledge and experience carried him through the interview, however, he was not offered the job.

By letter dated 27th August 2020 the Complainant was notified that his job was being made redundant, he was issued with four weeks pay in lieu of notice and received his statutory redundancy payment.

This letter also contained a clause in relation to appealing the decision to make his job redundant. The Complainant exercised his right to appeal the redundancy on 1st September 2020.

On 8th September 2020, the Complainant received an email from a Mr Rob Nolan of Graphite HRM informing him that he was given the right to appeal.  This was five days after my employment had already been terminated.

In his introduction letter Mr Nolan claimed to be external and impartial.

“PRB Restaurants feels it is in the best interests of all parties to engage the services of an external and impartial HR consultant to conduct this Appeal process, and to issue a decision in respect of it.  Therefore, they have engaged the services of Graphite HRM for this purpose”.

Being a manager in PRB Restaurants Ltd and having served over ten years, the Complainant knew that Peninsula were a long time HR consultant to the company.  He was also aware that Graphite HRM was part of Peninsula.

The Complainant wrote to Mr Nolan on 9th September 2020 and raised his very serious concerns regarding his (Mr. Nolan’s) bona fides in relation to his claim of being “external and impartial”.  He never received a reply.

The Complainant attended the Appeal Hearing on 17th September 2020 presided over by Mr Rob Nolan.  At the start of the hearing, he was asked if there was a statement he would like to make and have recorded in the minutes.  The Complainant stated for the record that he did not believe Mr Nolan’s claim to be external and impartial.  Mr Nolan replied “I am part of Graphite; we are independent but yeah look I understand where you are coming from “. 

On 6th October 2020 the Complainant received the transcript of his appeal hearing.  It was sent to him via Mr Nolan’s Peninsula email address Robert.nolan@peninsula-ie.com.  The Complainant (in his own words) questions just how often Peninsula roll out this Graphite HRM service to their clients and how many people have been conned by such dubious behaviour in the past.

On 15th October 2020 the Complainant received the Appeal Outcome.  During the appeal hearing he had informed Mr Nolan that he had never received a selection criterion from the company, even after asking the company to produce this document several times.  In his decision, Mr Nolan relies heavily on a report commissioned by a company and compiled by Messrs Dolan & Dunne on PBR Restaurants Ltd in April 2020 and claimed that this report was the selection criteria used by the company to make me redundant.  This report was never mentioned to the Complainant by the Directors as a selection criterion for his redundancy and was never mentioned by Mr Nolan during the appeal hearing.

This report did not relate to me or my role and could never have been used as a selection criterion to justify my redundancy.

In his appeal outcome document Mr Nolan not only depends on this report but attempts to rubber stamp the independence and expertise of the writers.

CONCLUSION

PBR Restaurants Ltd have shown a cavalier disregard for due process throughout the redundancy process when they continued to behave as if employment law does not apply to them.

This was nothing more than a sham redundancy carried out in a ruthless and dishonest manner without a single thought for the personal damage the company inflicted on the Complainant.

Whilst the Complainant was made redundant on 27th August 2020, the Complainant is of the opinion that the true date was five months previous in March 2020 when he was laid off without pay.  In those five months alone, he lost €9,163 in lost wages plus tips.  Between September and December 2020, he lost another €15,000 in wages and tips.    

During that time there were little or no jobs in the restaurant business due to Covid 19 as most reasonable employers were trying to keep on full time staff given that they could claim the TWSS payment for them.  In fact, PBR Restaurants were doing just this for all staff including new recruits.

The Complainant contacted Louise Tanju in head office on 14th August 2020 to ask if she could provide a reference for him.  Louise had recently provided a reference for another staff member.  The Complainant had known Louise for over ten years, and she had actually trained him as a waiter.  However, Colin Pardy intervened and instructed Louise not to do the reference and to leave it with him even though he had only known the Complainant for 3 months prior to the lay-off. 

The Complainant feels that the lack of a good quality reference became his biggest obstacle when trying to obtain a new job.  The Complainant believes it was not enough to fire him.  the new directors wanted to damage his career prospects and hinder him from applying for any jobs in the hospitality sector.  The Complainant worked in PBR Restaurants for over ten years and all his hard work and loyal service earned him a reference that contained just three words.

By letter dated 30th March 2020 the Complainant was informed that, due to Covid 19, he was being laid off from employment. On 20th April 2020 the complainant was informed by email that he was being left on temporary lay off due to the ongoing pandemic.

The Complainant attended a meeting with the two directors on 10th July 2020. The purpose of this meeting was to discuss the financial situation in the company and to address this situation there would need to be a restructure in the company and that this potentially could lead to redundancies. The aspiration was to preserve all roles within the company but that the Complainant’s position was at risk. One of the directors informed the Complainant that any redundancy would be a last resort.

A further consultation meeting was planned for 15th July. The purpose of this meeting was to provide the Complainant with a chance to discuss the proposed redundancy in more detail and that these discussions may include the following:

·       Why the company has decided that it is necessary to make redundancies

·       Why your position in particular has been provisionally selected for redundancy

·       The terms on which any redundancy would take place

·       Possibilities for applying for alternative roles within the company

·       Any ideas you may have for avoiding redundancy.

This letter also included the following:

“I appreciate that this news will cause you concern and I am available to discuss all aspects of the potential redundancy situation with you”.

From papers submitted by the Respondent I note that there is a three-page document dated 18th June 2020 titled “Business case for proposed redundancies PBR Restaurants Ltd”. This document shows that there was an intention to make the Complainant’s position redundant as far back as mid-June 2020.

At the consultation meeting on 15th July 2020 the Complainant stated the following:

“…. I really think this should be stopped. I think it is a sham redundancy. I think that the restaurants should all be open, that I should really be back at work. And I don’t think its legitimate. I think its pretty clear that my family are being targeted, and I think it has been going on since the business was taken over. And I think Covid is really just being used now as an excuse to achieve your goal, and its really just to get myself and my family out of the business, the four of us”.

A second consultation meeting took place via a Zoom call on 14th August 2020. It was at this meeting that the subject of the complainant’s unsuccessful application for a newly created operations role.

On 27th August 2020 the Complainant received formal written confirmation that his role was being made redundant. This letter also stated that due to the fact that there was currently no work for him he would receive payment in lieu of notice. The Redundancy was to take place with immediate effect. The Complainant was offered the right to appeal which he did.

On 1st September 2020 the Complainant appealed his redundancy.  The Complainant alleged that:

a)           The redundancy was a sham, and there was no bona fide consultation process.

b)           He was not offered an alternative role or any re-training.

c)           The decision to terminate his employment represented an Unfair Dismissal.

d)           The Respondent’s intention was to secure his dismissal because of who he was.

e)           He was being discriminated against due to who he was.

The Respondent employed Graphite HR to hear the appeal.  This was facilitated by a Mr Rob Nolan.  The Complainant was invited to an appeal on 10th September 2020.

The Appeal.

On 1st September 2020 the Complainant appealed his redundancy.  The Complainant alleged that:

3.       The redundancy was a sham, and there was no bona fide consultation process.

4.       He was not offered an alternative role or any re-training.

5.       The decision to terminate his employment represented an Unfair Dismissal.

6.       The Respondent’s intention was to secure his dismissal because of who he was.

7.       He was being discriminated against due to who he was.

The Respondent employed Graphite HR to hear the appeal.  This was facilitated by a Mr Rob Nolan.  The Complainant was invited to an appeal on 10th September 2020.

By letter dated 8th September 2020 to the Complainant, a Mr Rob Nolan from Graphite HRM wrote to the Complainant. The following is an extract from this letter:

“I have been provided with a copy of your appeal email dated 1st September 2020 in which you detailed your appeal grounds.

In the circumstances, PBR Restaurants feels it is in the best interests of all parties to engage the services of an external and impartial HR Consultant to conduct this Appeal process, and to issue a decision in respect of it. Therefore, they have engaged the services of Graphite HRM for this purpose”.

In a written reply to this letter the Complainant stated on 9th September 2020:

“However, before we go any further, in your email of 08/09/2020 you made the very strange and I believe, very misleading statement below:

PBR Restaurants feels it is in the best interests of all parties to engage the services of an external and impartial HR Consultant to conduct this Appeal process, and to issue a decision in respect of it. Therefore, they have engaged the services of Graphite HRM for this purpose”.

It is very clear to me, but please correct me if I am wrong, Graphite HRM is a department within Peninsula Ireland

I know that Peninsula Ireland were contracted by PBR Restaurants Ltd in the years prior to going into examinership in August 2019. I am also aware that Peninsula were re-engaged by the new directors of PBR Restaurants Ltd to advise the company of their decision to sack four senior managers (The Hanley family and only the Hanley family).

I do not accept your bona fides in relation to your claim of independence. I phoned Peninsula Ireland today and confirmed that you do indeed, work for Peninsula Ireland.

That being the case and given the facts that Peninsula are already on the payroll and have been advising on what I believe is clearly a sham redundancy from the start, perhaps you might explain how you are “external and impartial” before we proceed with this appeal on such a basis.

I don’t mind telling you, I am a little shocked that a company like Peninsula, with such a sterling reputation, would attempt to operate in such a covert and misleading manner”.

The Appeal hearing took place on 17th September 2020, this was a face-to-face meeting. The Complainant attended the hearing unaccompanied, also present was Mr. Rob Nolan from Graphite HRM.

In the post appeal hearing document compiled by Mr. Nolan he states the following:

Central to this matter is the report compiled by Messrs Dolan and Dunne. PBR restaurants commissioned this report. It gave life to the redundancy process, given that it recommends a new “lean” Head Office function, with, in particular, the roles and responsibilities of the General Manager and Operations Manager to be absorbed by a new “enhanced” manager at each of the sites. Further it impacted on the Floating Manager and Site Manager roles, in that these roles were no longer required, given the move to this “enhanced” manager role.

The Dolan / Dunne Report provides 10 short-term possibilities for the Board to consider, these are:

1.       The possibility of restructuring and streamlining the Head Office function which could generate annualised savings of c.€140k.

2.       Implementing a determined cost-reduction programme which could generate annualised cost savings amongst non-staff costs of c.€60k

3.       Empowering the Floor Managers and Head Chefs to put together cost-efficient rosters so that the business can achieve annualised staff savings of c.€90k

4.       Empowering Floor Managers and Head Chefs to produce their own local budgets (with the assistance and agreement of Head Office Management) and thereby have the opportunity to earn a significant quarterly Budget-achievement bonus.

5.       Encouraging the CEO to support the procurement manager to constantly persuade Head Chefs to be more flexible in their menus to exploit margin opportunities arising from variations in the cost of fish.

6.       Instigating weekly Zoom meetings with all Floor Managers and Head Chefs and THE Procurement Manager to review turnover, staff costs and input costs and any staff / customer issues.

7.       Re-negotiating rents for Malahide and Parliament Street and consider the closure of the Stillorgan Office with the relocation of the admin function to one of the restaurants.

8.       Boosting turnover by starting a continuous localised marketing drive, utilising the Gold Fish scheme, targeting the corporate market, and greater use of social media.

9.       Initiating modest improvements to restaurant appearance /infrastructure, e.g., Kitchen air conditioning, and inexpensive external improvements to the appearance of Sandycove.

10.   Reflecting on the possible re-opening of Malahide and Parliament Street, the Board should examine these operations in more detail and consider [a] the annual rent, [b] the staff costs, including the floor-staff costs, and [c] the reasons behind the low turnover.

There is nothing mentioned in this report about redundancies. Whilst there is a mention of lowering head office costs, I would point out that the Complainant was not considered as head office staff.

I am unable to overlook the comments made by the Complainant and his representative in relation to the impartiality of the appeal. It was not helpful that the appeals officer sent the appeal outcome from an email address of  Robert.nolan@peninsula-ie.com on 15th October 2020. This was the second email received by the Complainant from the email address (the first being sent on 6th October 2020).

In relation to the appeal I must conclude that the appeal was completed in a manner that I would not consider professional and proper.

In relation to the process followed by the Respondent I conclude that there appears to be no evidence of any alternatives looked at by the Respondent in relation to the Complainant’s future. At the time of the dismissal the Complainant was on lay-off, there was no cost to the Respondent in keeping him on lay-off for a longer period. At the time the Covid pandemic lockdown was in progress and there was a significant level of uncertainty in relation to how long this would continue.

I find that the complaint as presented under the Unfair Dismissals Act, 1977 is well founded and that the Complainant was unfairly dismissed from his employment.

Mitigation.

A two-page document was received on behalf of the Complainant. This document contends that the Complainant incurred a loss of earnings of €62,581.51.

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. Sir Joh Donaldson explained the duty in AG Bracey Ltd V Iles [1973] IRLR210:

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interest of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, off course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay….’

It is clear that an employee must produce evidence at the hearing that he or she has made a ‘determined effort to find work’.

In Sheehan v Continental Administration Co LtdUD 858/1999 the EAT endorsed the following position:

‘[a] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work…. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss.

In the instant case the Complainant contends that, due to Covid, there were simply no jobs to be found and this situation existed from September 2020 to July 2021.

The Complainant contends that he kept in touch with numerous restaurant people and there were no fulltime jobs.

The Complainant furnished no proof of any job applications that he made; I must give consideration to this fact.

Section 7 (1) of the Act of 1977 reads as follows:

(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 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.

Section 7(2) then reads at subsection (c):

(c) the measures, (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.

Whilst the Complainant made some efforts to find employment, I am not completely satisfied that he utilised some time each working day in his search for employment. As already stated, he produced no evidence at hearing.

In conclusion I find that the complaint as presented is well found and now order the Respondent to pay compensation of €30,000.

This sum is in addition to any payments already made to the complainant and should be paid within 42 days from the date of this decision.

In conclusion I find that the complaint as presented is well found and now order the Respondent to pay compensation of €30,000.

This sum is in addition to any payments already made to the complainant and should be paid within 42 days from the date of this decision.