Complainant

Respondent

Parties

Andrew  Champion

Loughrea Golf Club

Representatives

Mr. Robin Hyde, Alastair Purdy & Co. Solicitors

Ms. MP Guinness, instructed by  Gleeson McGrath Baldwin Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00039073-001

07/08/2020

The Complainant commenced employment with the Respondent on 18th February 2020. The Complainant was a permanent member of staff, working an average of 25 hours per week. Throughout his employment, the Complainant received an average weekly payment of €375.00. The contract of employment was terminated by the Respondent on the grounds of redundancy on 18th February 2020.

On 7th August 2020, the Complainant referred the present complaint to the Commission. Herein, he alleged that his dismissal was unfair for the purposes of the impleaded Act. In particular, he submitted that he was made redundant without due process or consultation. He further disputed the existence of the valid redundancy situation at the relevant time. By response, the Respondent denied each of these allegations. In essence, they submitted that the club experienced significant financial difficulties and that the redundancy of the Complainant was a cost saving measure implemented on foot of the same. They further submitted that management of the Respondent had consulted with the Complainant prior to his redundancy.

An initial hearing was convened for this matter for 28th September 2021. As the matter did not finalise on this date, the matter was adjourned to a second day of hearing. Following numerous applications for adjournment, the matter was re-list for hearing, and finalised, on 3rd March 2023.

Both parties issued written submission in accordance with the relevant guidelines in advance of the hearing. The Complainant gave evidence in support of his complaint, while the Respondent called the Club Treasurer, the Club President and the Club Secretary to give evidence in defense. All evidence was given under oath or affirmation and was opened to extensive cross-examination by the opposing side. In circumstances whereby the fact of dismissal was not in dispute, the Respondent accepted that consequent burden of proof imposed by the Act and presented their case prior to the Complainant.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant commenced employment with the Respondent as a part-time club secretary on 18th February 2018.

During the year 2019, the financial position of the club became progressively more strained. In the annual accounts submitted in 2019, the club’s auditors warned that the organisation was in danger of losing its capacity to trade as a going concern. The financial position of the club was placed under further strain with the imposition of the restrictions arising from the Covid-19 pandemic and the consequent effect on the Respondent’s turnover. As a consequence of the foregoing, the Respondent was obliged to examine its operations and determine what, if any, costs savings could be achieved.

At the relevant time, the Respondent employed four persons to maintain the course itself. Of these, one role was full-time, with the other three persons engaged on a part-time basis. The only other employee was a bar-manager, who had sole responsibility for the bar and catering areas. The Complainant was the most recently appointed member of staff.

Following a review of the Respondent’s operations, it was determined that the Complainant’s role could be considered for potential redundancy. Given the nature of his duties, the management of the Respondent considered that the same might be completed by club members of a voluntary basis. On foot of the same, the Club Secretary telephoned the Complainant on 27th May 2020. At this point, the Complainant was on lay-off as a consequence of the restrictions arising from the Covid-19 pandemic and was in receipt of the Pandemic Unemployment Benefit. During this conversation, the Club Secretary outlined the precarious nature of the club’s finances. He indicated that the Respondent would be seeking a greater reliance on club members acting in an unpaid capacity. The Club Secretary advised that this development may have implications for the Complainant’s position. The call ended with the Club Secretary confirming that he would contact the Complainant in the coming weeks.

On 18th June 2020, a meeting of the management committee was held to consider the possibility of restructuring the the club in order to effect cost savings. During this meeting it was proposed that the Complainant’s duties would be completed by various volunteers. The board of the club unanimously voted to implement this plan, effectively making the Complainant’s role redundant. In this regard it was agreed that an ex-gratia payment of two weeks pay per year of service should be issued to the Complainant.

On 26th June 2020, the Club President and the Club Chairperson met with the Complainant in the Respondent’s offices. During this meeting the Complainant was informed of his impending redundancy and the rationale for the same. Both the Club President and the Club Chairperson emphasised the fact that this was a solely financial decision. The Complainant was given notice of his termination for 10th July 2020.

On 3rd July 2020, the Club Secretary met with the Complainant and provided him with details of his redundancy, ex-gratia payments and termination entitlements. Following the redundancy of the Complainant, the club has not replaced his role, with the duties continuing to be completed by unpaid volunteers.

In evidence, the Club Treasurer outlined the financial difficulties facing the Respondent in advance of the Complainant’s termination on the grounds of redundancy. He gave evidence in respect of the cost saving measures examined by the club and the proposed restructure whereby the Complainant’s duties would be undertaken by volunteers. In answer to a question posed in cross examination, the witness denied that the figures relied upon cam from a part of the year where the club’s finances would naturally be at a low ebb. In answer to a question posed by the Adjudicator, the witness accepted that the financial difficulties experienced by the Respondent were in existence, if less acute, when the Complainant commenced his employment.

In evidence, the Club Secretary gave direct evidence of his account of the phone call of 27th May 2020 and submitted that this constituted a consultation with the Complainant. Finally, he gave evidence of the meetings with the Complainant of 26th June and 3rd July 2020. In cross examination, the witness denied that the figures provided came from a typically slow part of the year and were cherry picked in order to demonstrate an inaccurate portrayal of the club’s finances

In answer to a question posed in cross-examination, the Club Secretary accepted that the number of new memberships had increased prior to the redundancy of the Complainant. Nonetheless, he submitted that many of these new members would not remain permanent, annual members and could not be relied upon to provide a reliable income stream for the Respondent. The Club Secretary denied the Complainant’s version of the phone call of 27th May 2020, and refered to a handwritten note he had retained in relation to the same. The witness accepted that this was not a verbatim minute of the meeting, but represented a list of the points he wished to discuss in the course of the call. When it was put to him that the recorded duration of the call was not long enough to discuss all these points, the witness stated that they were not discussed in great detail. In answer to a question posed by the Adjudicator, the witness accepted that the words “redundancy” or “termination” were not used during the call of 27th May. He further accepted that the redundancy of the Complainant was decided during the board meeting of 18th June 2020.

In evidence, the Club President also gave a brief account of the financial position of the Respondent. He again outlined the rationale for the Complainant’s redundancy and stated that the job of the Complainant continued to be undertaken by unpaid volunteers.  In answer to a question posed in cross-examination, the Club President accepted that the Complainant put forward alternative to redundancy. He stated that the proposal had been considered previously and had been dismissed by the Board.

In closing, the Respondent submitted that the dismissal of the Complainant was not unfair for the purposes of the present Act. They submitted that the necessity for the redundancy arose from the precarious financial position of the Respondent. They further submitted that the Complainant had been consulted with in advance of the proposed redundancy. Having regard to the foregoing, the Respondent submitted that the dismissal of the Complainant was not unfair and that consequently, the complaint should fail.

By submission, the Complainant alleged that his redundancy was both procedurally and substantively unfair. As a consequence of the foregoing, the Complainant submitted that the Respondent had not discharged the burden of proof imposed by the Act.

The Complainant accepted that he received a phone call from the club secretary on 27th May 2020, whilst he was on a period of unpaid lay-off.  He stated that he received no advance notice of the proposed subject of this conversation. Regarding the conversation itself, he stated that the same was a brief discussion with the Club Secretary regarding his lay-off and the general Covid restrictions. At no time was the prospect of a potential or actual redundancy raised. The Complainant stated that the conversation was quite short and referred to the relevant call-log in respect of the same. His evidence in this regard was that he was not on notice of any proposed redundancy following this interaction.

The Complainant stated that on 26th June 2020, again without advance notice or discussion, he was summoned into a meeting with the Club President and the Club Secretary. In the course of the same, he was informed that his role was to be made redundant and was asked to sign an acknowledgement of the same. The Complainant protested this and gave the outline of an alternative to his redundancy. Notwithstanding the same, both parties indicated that the matter had been decided and that his termination would take effect in the coming weeks.

By submission, the Complainant’s representative outlined that the Complainant was made redundant in the absence of any formal or informal procedure. In this regard, it was submitted that the Complainant was summoned to meeting without prior notification or any ability to arrange representation. During this meeting the Complainant was summarily dismissed without any consultation. It was further noted that this decision did not allow for a right of appeal. Regarding the rationale for dismissal, the Complainant’s representative submitted that the accounts were taken from a period when the finances of the Respondent would be at a naturally low ebb. In this regard, the financial statements for the year 2020 were submitted. In particular, the Complainant’s representative pointed to an apparently improved financial position at this juncture.  

In respect of losses, the Complainant stated that he found it difficult to find employment following his termination. He stated that initially this was related to the ongoing restrictions arising from the Covid-19 pandemic. In order to improve his employment prospects, the Complainant commenced a HGV training course in late 2020. Following the same, the Complainant secured brief employment, however he was obliged to leave the same due to a medical issue. Thereafter, the Complainant commenced employment in a retail outlet in 2021. In answer to a question posed in cross-examination, the Complainant denied that he did not adequately mitigate his losses. He denied that there were lengthy periods whereby he did not appear to apply for any roles at all. In this regard, the Respondent referred to an advertisement for a role in separate golf club. The Complainant stated that he did not apply for this role as he was unaware of the same. He submitted that he did his best to mitigate his losses, however he experienced difficulties in respect of the same due to the ongoing effects of the pandemic.  

In the present case, the Complainant has submitted that his dismissal was procedurally and substantively unfair. His position is that he was summoned to a meeting in June of 2020 and informed that he was to be made redundant. In circumstances whereby this redundancy occurred without any form of consultation or input at all on his behalf, he submits that the same is unfair for the purposes of the present Act. In addition to the foregoing, he had submitted that the rationale for his redundancy, the financial difficulties experienced by the Respondent not sufficiently demonstrated, with unrepresentative data being referred to in the course of the proceedings. In the alternative, the Respondent submitted that prior to the Complainant’s redundancy, the club experienced a severe deterioration in their finances. On foot of the same, they examined their operations to identify potential cost-saving measures. Following such an examination it was determined that the redundancy of the Complainant’s position would result in a significant and ongoing cost saving. They submitted that they informally placed the Complainant on notice of the same prior to making any decision. In this regard, they submitted that the dismissal of the Complainant was not unfair for the purpose of the present Act.

Section 6(1) of the Unfair Dismissals Acts provides that,

“…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.”

Section 6(4)c of the Acts expressly lists “redundancy” as a ground of dismissal which shall not be deemed to be unfair. In a situation whereby the Respondent can demonstrate that such a redundancy is substantively and procedurally fair, they may rely on the defence afforded by Section 6(4)C of the Act. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

Section 7(2) (as amended) of the Redundancy Payments Acts 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-

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.”

In the matter of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated that,

“It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”.

In the present case the Respondent has submitted that they placed the Complainant on notice of his potential redundancy by way of a phone conversation in May 2020. While the Complainant accepts that he spoke with the Club Secretary on this date, he denies that any matters relating to redundancy were discussed at this time. Having heard the evidence of the relevant witnesses, it is common case that no mention of redundancy or termination was made during this call. The evidence in this regard stated that the Complainant was informed that there may be “implications” for his ongoing employment. Taking this position at its height, and noting the conflict of evidence that exists in relation to the same, it is apparent that these matters were discussed in an oblique and informal matter. If it was the case that the Complainant was to be put on notice of his potential redundancy, this should have been communicated directly and without any scope for misinterpretation. In addition to the foregoing, this issue may have easily been avoided had the Respondent issued some form of written correspondence at the relevant time.

Thereafter, it is apparent that the management of the Respondent invited the Complainant to a meeting whereby he was informed that his employment was to be terminated on the grounds of redundancy. The relevant witnesses in this regard candidly accepted this this was presented as fait accompli on this date, with no further consultation or input being sought from the Complainant in this regard. A number of procedural issues arise in relation to this position; firstly, I note that the Complainant was not placed on notice of this meeting or provided with an advance information regarding the proposed agenda for the same. Arising from the foregoing, the Complainant was unable to arrange any form of representation in respect of a meeting whereby his employment was to be terminated. The Complainant was not provided with any of the information used by the persons who made this decision, nor did he ever have an opportunity to contest the conclusions reached on foot of the same. Finally, the Complainant was not informed of any right of internal appeal of the matter.

Having regard to the foregoing, it is apparent that the process utilised by the Respondent was fundamentally unfair towards the Complainant. In this regard, these procedural matters are not empty formalities, they are the process by which an employee can contest the rationale for a redundancy, advocate for their continued employment and suggest alternatives to their dismissal. The Respondent’s failure to allow for the same renders the Complainant’s dismissal unfair for the purpose of the present Act. During the hearing the Complainant disputed much of the financial rationale for his redundancy. During a functional process, the Complainant would have been in a position to make such representations prior to any decision being made.  While the Respondent disputed the same in the course of the hearing, again the appropriate time for such consideration and response is prior to the decision to the dismiss the Complainant.

Having regard to the totality of the foregoing points, I find that the dismissal of the Complainant was unfair for the purposes of the present Act.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard the Complainant submitted evidence of his efforts to secure alternative employment following his dismissal. While these commence shortly following his dismissal, there does appear to be at least one fairly lengthy period whereby the Complainant did not apply for any roles. I further note that the Complainant failed to apply for a similar role in the same region whilst he was unemployed. Notwithstanding the same, it is apparent that the Complainant made some material efforts to mitigate his losses. In particular, I note that the Complainant actively sought out and engaged with training that would allow him to employment in a industry that remained in high demand during the restrictions arising from the Covid-19 pandemic. Having regard to the foregoing, I find that while the Complainant did not make the full efforts to mitigate his losses as required by the Act, he did take some measures and largely continually attempted to secure employment following his dismissal. Having regard to the foregoing, I award the Complainant the sum of €8,000 in compensation. For the avoidance of doubt, this payment is in addition to the termination payments already received by the Complainant.

Redundancy, Consultation, Process, Procedure