Complainant

Respondent

Parties

Breda  Cox

Debenhams Retail (Ireland) Limited (In Liquidation)

Representatives

Paul Henry SIPTU

Kelley Smith SC, Des Ryan BL Colum Holland Matheson

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 9 of the Protection of Employment Act 1977 as amended.

CA-00039268-001

19/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 10 of the Protection of Employment Act 1977 as amended.

CA-00039268-002

19/08/2020

The Complaints relate to the compulsory redundancy of the Complainant.  SIPTU on behalf of their member allege that the Respondent breached sections 9 and 10 of the Protection of Employment Act 1977 (as amended). This is an agreed test case between the parties relating to other SIPTU members who also were made redundant.

The parties agreed the chronology of events along with supporting documentation and in turn opened to the tribunal.

Ms. Cox worked as a Catering Assistant in the Henry Street shop and commenced her employment in December 1998. Her weekly gross pay was €445.

Alleged Breach:

The main points of contention between the parties are whether the Respondent provided Ms Cox’s representative with information required and requested so that the Union could formulate meaningful proposals to mitigate the impact of the proposed collective redundancies. Also, it is alleged that the Respondent failed to meaningfully engage in the consultation process so that an agreement could be concluded to limit the impact of the collective redundancies.

When should consultation begin?

Article 2 of Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies (Directive 98/59) states that consultation shall begin consultation “where an employer is contemplating collective redundancies.” While the Protection of Employment Act1977 as amended (hereinafter ‘the Act’) at section 9 states consultation shall commence “where an employer proposes to create collective redundancies”, the Directive is clear that the obligation arises on contemplation of collective redundancies. The Respondent should have commenced consultation well in advance of the 17th of April 2020.

On or about the 24th of March 2020 an emergency board meeting took place (Tab C-1). At this meeting the DRL Chairman and DRL Chief Financial Officer attended. DRIL was projected to lose €9.5 million between April and August due to Covid-19. Options were discussed to limit the impact on cash flow and protection such as rent and service charge holidays and more importantly consideration of other options such as examinership, standing still and liquidation. As liquidation would inevitably mean redundancies, the Complainant contends that consultation should have begun on or about the 24th of March 2020.

The consequences of this delay until the 17th of April 2020 to commence consultations meant at that stage the parent DRL had withdrawn financial support and liquidators had been appointed, in effect reducing the scope of the consultation to liquidation alone.

The Scope of the Consultation:

The Act requires that consultations should be about the possibility of avoiding collective redundancies, reducing the numbers affected by the collective redundancies or mitigating their effect. The Directive 98/59 requires that the consultation shall at least cover ways and means of avoiding collective redundancies or reducing the numbers of workers affected and of mitigating the consequences.

It is the Complainant’s position that arising from the fact of the Respondent going into liquidation and securing a winding up order from the court and relying on Fujisu Siemens case (C-44/08, para 47), that a consultation ‘which began when a decision making such collective redundancies necessary had already been taken could not involve any examination of conceivable alternatives with the aim of avoiding them’. The Complainant argued as the winding up order had been given in reality that meant it was not possible to avoid collective redundancies. It is the Complainant’s position that while the Liquidator did commence a 30-day consultation process it had no intent of mitigating the effects of the decision to wind up the Company and was a required process to wind down the clock so that the Respondent could make all employees redundant.

The first consultation meeting took place on the 17th of April and at the second consultation meeting on the 28th of April 2020 there was no discussion about reducing or avoiding collective redundancies other than to temporarily assign staff to realising assets. At the third consultation meeting on the 7th of May  the workers were told that without the support of the UK the Irish entity could not trade and therefore there was no reason to extend the consultation period and that the following week they would be moving towards redundancies. He also stated that there were no further alternatives available. It is the Complainant’s position that in effect this meant that a 30-day consultation process became a 20-day process.

The General Secretary of Mandate wrote to senior executive Mr Vansteenkiste on the 5th of May, 18 days into the 30-day process, stating that the Union was looking for either full or partial retention of the business, calling on the owners to provide sufficient funds to make this outcome possible and avail of Covid supports to businesses so that they could survive into the future.

There is no reference to mitigation in any of the consultation minutes and no thought is evident to any form of mitigation ‘by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant’ as set out in the Directive 98/59.

What information must be provided and when?

The Union stated that under the Act there are two obligations:

·        To supply all relevant information

·        To supply specific information

The specific information was supplied on the 23rd of April 2020, 7 days into a consultation process. This was not in a timely manner. In relation to providing all information, the Unions sought much information that would allow them to make alternative proposals to reduce the scale and effects of the proposed redundancies.  On the 7th of May 2020 the Liquidator stated that there was no alternative to what had been envisaged at the start of the process and in effect all roles would be made redundant. At this date the relevant information requested by the Unions to a very significant extent had not been provided. While information was provided it was not what was requested. This meant that meaningful proposals could not be formulated.

Weight to be given to Parent Company:

The Act is clear that it is not a defence for the employer to state that only when they had the necessary information from the parent company could they have begun the consultation process. The Respondent wrote to DRL on the 8th of April about continued financial support, receiving a response on the same day stating the DRL would not be in position to finance the Irish subsidiary. The Respondent did not question this and immediately moved on the 9th of April to make a recommendation to their parent company to wind up the business. What was required at minimum was for the consultation process to commence on the 9th of April and this was a fundamental breach of the right of the member worker and others for meaningful consultation to commence on the 9th of April 2020.

The Union rely on the opinion of Advocate General Sharpton in the joined cases of C-16/17, C-62/17 and C-72/17 in particular paragraphs 43 and 44:

“The obligation to participate is at all times on the employer; it is not on the undertaking having control, even though it is clear that the duty to hold consultations can arise in situations where the prospect of those redundancies is not directly the employer’s choice. To that end, the employer must begin the consultations ‘in good time with a view to reaching agreement and the workers’ representatives should be placed in a position to make ‘constructive proposals.”

“The employer must therefore ensure that the consultations in question pursue a worthwhile purpose. It is the employer which must undertake them; it cannot rely on a failure by the decision maker undertaking to provide the necessary information and must itself bear the consequences of such a failure. It is therefore essential that information be provided to the employer by the correct source.”

In Akavan v Fujitsu C-44-08 two questions answered by the court are also relevant to the complaints before this tribunal.

The first question related to what is the meaning of ‘is contemplating collective redundancies’ in Article 2(1) of Directive 98/59? The Complainant stated that the court had determined that once a strategic decision is taken that compel the employer to contemplate or to plan for collective redundancies the obligation to consult arises.

The second question relates to whether the obligation to commence the consultation depends on whether the employer is able to provide the workers representatives with the information required as required under Article 2(3)(b) of Directive 98/59. The obligation to commence the consultation process does not depend on whether the employer is able to supply the workers representatives with all the information required in Article 2(3)(b) of the Directive.

The Complainant in their submission state:

The exact day is not clear, but reference was made by Mr. Ian Deegan at the first consultation meeting on April 17th, 2020, to an emergency meeting of the Irish Board that took place online with the DRL Chairman and DRL Chief Financial Officer on the 24th of March 2020 (Tab C-1). At this meeting, the Irish Board was made aware of their Cash Flow Position and projections over the next 3 months. DRIL was projected to lose €9.5 million between April and August due to Covid-19. Options were discussed, including looking for rent and service charge holidays but also - and importantly - options around examinership, standing still and liquidation.

And:

But even though the Irish Board agreed at their meeting on the 24th of March to write to landlords looking for rent and service charge holidays and received legal advice from William Fry in terms of their responsibilities, they failed to even alert their employees to the possibility for another 2 weeks. This had a material impact on the process. Had they initiated consultation immediately following the 24th of March meeting, there would still have been time to discuss alternatives to liquidation and collective redundancies. Instead, they waited until 3.5 weeks after this meeting to hold the first consultation meeting. By this time, DRL had already long since withdrawn financial support, and liquidators had been appointed, reducing the possible scope of the consultation to liquidation alone.

And:

The Respondent wrote to DRL on the 8th of April about continued financial support, receiving a response on the same day stating DRL would not be in a position to provide financial support to Debenhams Ireland going forward. The Respondent did not (appear to) question this, and instead of moving to consultation with workers’ representatives, its board resolved on the 9th of April to write to DRL, recommending that it take “immediate steps to petition the Irish High Court to wind up the Company”.

The failure to initiate consultation on or about the 24th of March 2020 created delay. It is also clear that the obligation to meet the legal requirement to consult was totally absent from the employers priorities as can be seen from their focus to wind up the Company on or about the 9th of April 2020.

That delay must be viewed in the context of a 30-day consultation window. The first consultation meeting took place on the 17th of April 2020, a 24-day delay. The process did not commence in good time.

The consultation process was not meaningful and neither addressed ways to save jobs and to mitigate the effects of the proposed redundancies on employees. The Respondent failed to provide the complainants with adequate information.

Background:

The Company was part of a group of companies (the “Debenhams Group”) and was a trading subsidiary incorporated to operate in Ireland. The Company had ceased trading from stores on 24th of March 2020 arising from public health requirements due to Covid 19. On the 7th of April 2020 administrators were appointed to the parent in the UK DRL. This is a process to provide a breathing space from creditors to assess if the business can continue and be restructured.

On or about the 8th of April 2020 DRL (the parent) who had been financially supporting the Irish subsidiary for some time, informed the Respondent that it no longer could financially support it. In essence that meant the Respondent has no source of funding going forward.  The Company was insolvent. In circumstances where the Company was insolvent the directors were required to consider the creditor body as a whole. On the 9th of April the Irish Board passed several resolutions:

·        The Company could not continue trading.

·        The Board recommended to the parent that immediate steps should be taken to wind up the Company and to have a liquidator appointed.

·        Staff should be informed of the position.

In respect to legal advice about collective redundancies and legal obligations relating to employee consultation, this was not to hand at the meeting and was pending from the Company’s solicitors.

On the 14th of April 2020 a written resolution was passed to wind up the Company. On the 16th of April 2020 by order of the High Court joint provisional liquidators were appointed.

Communication with Employees:

On the 14th of April 2020 the Company wrote to the Minister for Employment Affairs and Social Protection with notification of the proposed redundancies and set out all the necessary information required by the Act. On the same day the Company wrote to both Mandate and SIPTU with the notice of the proposed redundancies. All employees’ roles were proposed for redundancy.

On the 17th of April 2020 a conference call by Zoom was arranged with employee representatives. This was the first consultation meeting and covered a number of matters such as the beginning of a 30-day consultation period, financial information, an update in relation to stock, online trading, concessions and suppliers. The role of liquidators was explained.

Employees were provided a written update on the 23rd of April 2020 about the consultation process that had begun.

On the 28th of April 2020 a second consultation meeting was held and there was an open consultation held with the representatives about: the liquidation court timeline; Company assets; the 30 day consultation process; date of proposed redundancies; cash reserves; level of stock held in stores; online trading; status of leases; the UK business; the possibility of reopening some stores to sell existing stock and whether a the terms of a redundancy deal could be negotiated.

On the 7th of May 2020 a 3rd consultation meeting was held. An update was given to the representatives about the website and online trading; stock, leases and that the parent would not be providing any financial support. Based on the financial position of the Respondent company there was no merit in extending the consultation process and would be moving towards redundancies the following week. Queries were raised about preferential creditors which were answered. It was confirmed that the 27 staff who had been retained were for the purposes of the orderly wind down of the Company’s affairs and they would be paid from the cost of the liquidation.

On the 15th of May 2020 a 4th consultation meeting was held and it was confirmed that the process would come to an end after the 30-day period expired.

On the 20th of May the joint liquidators wrote to the employees with notice of termination.

Relevant Legal Principles:

There has been little judicial consideration of the legislation. In Tangney v Dell Products Limerick [2013] IEHC 622 the issue of the time of consultation was considered.

In Lakelands Nursing Home Limited v Costello and others PE1/2013-PE9/2013 the Employment Appeals Tribunal found that there had been a breach of section 9 of the Act. In this case the employer refused to meet employee representatives and the tribunal determined that a breach had occurred but it was a technical breach as the consultation would not have changed the outcome. The tribunal awarded 1 week’s remuneration.

The language of sections 9 and 10 of the Act reflect the Directive. In particular, the obligation to consult as stated in Article 2(1):

“Where an employer is contemplating collective redundancies, he shall begin consultations with the worker’s representatives in good timewith a view to reaching agreement.”

The Article does not specify a time period. It does not use language such as immediately or as soon as possible. In good time implicitly accepts that the factual situation of each case must be considered.

A relevant European Court of Justice case confirmed in Claes v Landsbanki Luxembourg SA (Cases C-235/10 to 239/10) ECLI:EU:C: 2011:119 that the Directive applied even where an employing entity was being wound up even if national legislation provided for the termination of employment contracts with immediate effect. Until the legal personality of the entity ceased to exist, the obligations under Articles 2 and 3 were required to be met either by management or by the liquidator.

In Akavan Enitysisalojen Keskulitto ry and Others v Fujitsu Siemens Computers Oy C-44/08the Court provided clarity on the type of “decision” which gives rise to an obligation to start consultations with representatives in good time:

“…the consultation must be started by the employer once a strategic or commercial decision compelling him to contemplate or to plan for collective redundancies has been taken.”

“…within a group of undertakings, of strategic decisions or changes in activities which compel the employer to contemplate or to plan for collective redundancies gives rise to an obligation on that employer to consult with worker’s representatives.”

In Miriam Bichat (C-61/17), Daniela Chlubna (C-62/17), (C-72/17) v Aviation Passage Service (7th of August 2018) the Court provided guidance on the concept of a controlling undertaking. In Bichat the Court determined that a controlling undertaking is one which allows it to exercise a decisive influence on the employer’s decision-making body and can compel it to contemplate or to plan for collective redundances.

Alleged breach of section 9:

A 30-day consultation period was afforded pursuant to section 9(4) and both sides engaged in that process. The employee representatives were afforded numerous opportunities to raise questions and concerns during the period. The Complainant has not explained how the process was deficient.  The possibility of avoiding redundancies was discussed and as set out in detail, without support from the parent, which was not forthcoming, the Company was not able to trade and would have to be wound down. The relevant matters raised by the representatives were considered in detail such as the Company’s stock, website trading name and overall funding position. Without the parent’s support it was not possible to achieve an outcome where some jobs could be preserved. At the very earliest stage of the process all employees’ roles were identified to be at risk. An extensive and fair process was put in place. That process was commenced in good time.

The period of time before the Adjudicator is a period of one month, from the 24th of March 2020 when the Respondent ceased trading form stores due to COVID-19 restrictions, to 30th of April 2020, when the winding up of the Respondent was ordered by the High Court. The Company had been in a precarious financial position for several years. The Respondent’s parent was the sole shareholder.

The Respondent submits that the economic decision where redundancies would be contemplated was the 14th of April 2020 when the parent adopted a resolution to wind up the Company. It cannot be safely concluded that on the 8th of April 2020 when the parent decided to withdraw future financial support that that was a decision that contemplated redundancies. The Company could have obtained alternative funding.

Further and in the alternative and without prejudice to the argument that the 8th of April 2020 was not a determining event to commence consultations, the process in fact was commenced in good time. If the 9th of April 2020 is the correct date, the arrangements and ancillary steps had to be taken to bring about the first meeting on the 17th of April, including reasonable delays occasioned by Easter holidays and the constraints created by COVID.

Alleged breach of section 10:

All information required under section 10(2) of the Act was provided as set out in Company correspondence dated 14th of April 2020 and the 23rd of April 2020.

Section 10(2) provides for all relevant information relating to the proposed redundancies. This means that the employer is required to provide information that is relevant. Significant efforts were made to provide relevant information to the employee representatives and to answer queries raised by them. No breach of section 10 has been established.

No breach of section 9 and 10 has been established and in those circumstances the Adjudicator Officer must find that the complaints are not well founded.

When should the Consultation have begun?

In Tangey v Dell Products [2013] IEHC 622 Birmingham J stated that:

24. I have paid particular attention to the opinion of Advocate General Mengozzi in United States of America v. Nolan given that he was also the Advocate General in the Fujitsu Siemens case his opinion is particularly influential. He felt that the European Court of Justice was being asked to determine the trigger point for the employer's obligation of prior consultation in the case of collective redundancy and more specifically that the referring court was uncertain whether that obligation arose when the employer was planning to make a strategic or operational decision which, foreseeably or inevitably, will lead to collective redundancies or only when that decision had actually been made and the employer is planning to proceed with the consequential redundancies. As between the position argued for by Mrs. Nolan which was that only the first possibility ensured the effectiveness of the directive and the position adopted by the Commission and the EFTA Surveillance Authority who argued that in light of Fujitsu Siemens and the facts of the case of the referring court that the employer's obligation to begin consultations concerning collective redundancies arises when a strategic or commercial decision is taken which compels the employer to contemplate or to plan collective redundancies, the Advocate General indicated that he agreed with the interpretation contended for by the Commission and the EFTA Surveillance Authority. His subsequent analysis shows clearly the extent to which this was an area where facts had to be found and where he saw this as the critical exercise to be undertaken. He observed, at paragraph 49:-

"In my view, the method to be used by the referring court should be to identify which of the events mentioned in the order for reference which occurred before 5 the June 2006 was in the nature of a strategic decision and exerted compelling force on the employer for the purposes of giving effect to the consultation obligation, and the date on which that decision was made."

On the facts a strategic/economic decision was made on the 8th of April 2020 by Debenhams Retail Limited (the UK parent and sole shareholder-referred to below as ‘DRL’) that it no longer was in a position to fund Debenhams Retail (Ireland) Limited (DRIL). The Complainant stated that the obligation to commence consultations on the 24th of March 2020:

On or about the 24th of March 2020 an emergency board meeting took place (Tab C-1). At this meeting the DRL Chairman and DRL Chief Financial Officer attended. DRIL was projected to lose €9.5 million between April and August due to Covid-19. Options were discussed to limit the impact on cash flow and protection such as rent and service charge holidays and more importantly consideration of other options such as examinership, standing still and liquidation

The Respondent in their submission stated that based on the economic decision being made by the Parent, where redundancies would be contemplated, the relevant “decision” triggering the consultation process was the 14th of April 2020 when DRL adopted a resolution to wind up the Respondent.

The Respondent argued that while DRL could be considered an “an undertaking controlling the Employer”, where the Employer is the Respondent and that DRL appointed administrators on or about the 8th of April 2020 it could not be safely concluded that this decision contemplated collective redundancies.  The Respondent could have obtained funding from elsewhere. In a non-Covid environment the potential for another source of funding could have been explored.

Birmingham J in Tangey and based on the opinion of Advocate General Mengozzi in United States of America v. Nolan given that he was also the Advocate General in the Fujitsu Siemens case (stated) his opinion is particularly influential:

"In my view, the method to be used by the referring court should be to identify which of the events mentioned in the order for reference which occurred before 5 th June 2006 was in the nature of a strategic decision and exerted compelling force on the employer for the purposes of giving effect to the consultation obligation, and the date on which that decision was made."

Based on the facts of this case the relevant date was unquestionably the 8th of April 2020 when by return on the 8th of April the parent company stated that:

“neither Debenhams Retail Limited (in Administration) (or any administrator appointed to it) nor any other entity will be in a position to provide financial support to Debenhams Retail (Ireland) Limited going forward.”

That decision exerted compelling force on the employer for the purposes of giving effect to the consultation obligation where collective redundancies would have to be contemplated.

It is also important to note that the start date for the consultation is not predicated on all relevant information being available. In other words, not having relevant information to hand is not a reason to delay the commencement of the consultation. While the HR Director did share information with the worker representatives on the 14th of April 2020 that did not start the consultation process. The Liquidators stated that the process commenced on the 17th of April 2020, but this is not the relevant date.

In Good Time?

Article 2(1) of Council Directive 98/59/EC:

(1)    Where an employer is contemplating collective redundancies, he shall begin consultations with the workers' representatives in good time with a view to reaching an agreement.

In Tangey Birmingham J stated:

39. Under Article 2(1) of Directive 98/59, the employer has the obligation to start consultations with the workers' representatives in good time if he is "contemplating collective redundancies". As stated by the Advocate General in points 48 and 49 of his Opinion, it is clear from comparison of various language versions of that provision that the Community legislature envisaged that the obligation at issue to hold consultations would arise in connection with the existence of an intention on the part of the employer to make collective redundancies.

The Respondent argued that even if the strategic decision was made on the 9th of April 2020; when the consultation could actually start was conditional on the facts and what Good Time means in the circumstances of this case. If the consultation was required to be pursued from the 9th of April, the practical steps required to take place having regard to COVID lockdown, including time constraints as the decision was made at Easter and during a Public Holiday period meant that the first consultation meeting held on the 17th of April 2020 was commenced in good time.

In this case it could be argued that time was of the essence. Unlike the Parent company which was in administration and who had protection from creditor demands, no such protection would be sought for the Respondent company, such as examinership under Irish law. Therefore “in Good Time”- arguably means as soon as possible, particularly where options to mitigate the impact of collective redundancies reduce and narrow when a company is placed into liquidation. In such circumstances it would not have been unreasonable for the consultation to have commenced no later than the 9th of April 2020. However, as the Respondent argued what is required is for the process to start in’ good time’ and what does that mean in this case? The Liquidators accepted that as a liquidator their role was to realise the maximum value for the assets over which they had been appointed for the benefit of the creditors and winding up the Company in an orderly fashion. That could lead to a sale of all or parts of the business; however, that did not often occur.

On the evidence and facts before me, I find that the consultation process commenced on the 17th of April 2020. The formal consultation period was 30 days. The delay to commence the consultation process must be viewed having regard to this 30-day window of consultation and it took place after the Liquidators were appointed. The Complainant has argued that the appointment of Liquidators narrowed the options available. It is noted that liquidators are empowered to sell the business or part of the business. And under the Acquired Rights Directive 2001/23/EC and the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 as amended relating to the transfer of employees or the sale of a business or part of it are relaxed where the transferor is the subject of insolvency proceedings. While those provisions exist the requirement to commence in good time must have regard to the fragility of this entity when it was both confronting an economic decision that meant that no further financial support would be available from the Parent company and in addition the Covid-19 threat where non-essential businesses were being forced to close. In these circumstances in good time meant that there was an imperative to start the process on or about the 9th of April 2020 and the delay until the 17th of April 2020 was material in narrowing potential options to reduce and mitigate the consequences of the intended collective redundancies.

The Respondent argued that Article 2of the Directive does not identify a specific period of time for the consultation to commence. It does not use language such as immediately, as soon as possible, as soon as reasonably practicable or otherwise direct that urgency is to be applied. Instead, the use of the phrase in good time implicitly recognises the factual situation in each case that must be taken into consideration.

The phrase ‘in good time’ must be read in conjunction with 2(2) of the Directive:

(2) These consultations, shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant.

Member States may provide that the workers' representatives may call on the services of experts in accordance with national legislation and/or practice.

In other words, consultation should commence in good time having regard to the facts in this case, particularly relating to the financial impact on the entity caused by Covid-19 public health orders and store closures that were deemed to be non-essential and the withdrawal of financial support by the Parent.  The phrase in Good Time must be viewed in the context of the fragility of the business and that delay would narrow the options open to both parties during the consultation period. Therefore, that financial vulnerability called for consultation to commence in good time and at an early stage which was no later than the 9th of April 2020.

Relevant Information:

Article 2(3) requires that the employer shall in good time supply the representatives with all relevant information.

Thus, the Directive places an obligation to share in good time all relevant information. The Respondent stated that they provided all relevant information. However, 2(3) of the Directive must be interpreted having regard to the preceding requirement under 2(2) that the consultation is about ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant.

The Union representatives had requested information so that they could formulate constructive proposals.

Article 2(3) requires the following of employers:

(3) To enable workers' representations to make constructive proposals, the employers shall in good time during the course of the consultations.

(a) supply them with all relevant information and

I find that in the context of a retail store to seek the profitability of each store; the value of stock; who owned the stock; the capacity to trade online during the Pandemic; landlord lease arrangements are all relevant factors to formulating constructive proposals. The Liquidators did engage with the controlling undertaking and replied with the information available to them. However, it was not the information asked for and that information was relevant so that the worker representatives were enabled to make constructive proposals. That capacity was frustrated by the responses and information not provided which was not the relevant information sought. I have concluded that the information sought was necessary.

Under Article 2(4) the obligations are placed on the employer even where the controlling undertaking is making the decisions that give rise to collective redundances being contemplated:

(4) The obligations laid down in paragraphs, 1, 2 and 3 shall apply irrespective of whether the decision regarding collective redundancies is being taken by the employer or by an undertaking controlling the employers

In considering alleged breaches of the information, consultation and notification requirements laid down by this Directive, account shall not be taken of any defence on the part of the employer on the ground that the necessary information has not been provided to the employer by the undertaking which took the decision leading to collective redundancies.

The distinction between all relevant information and all information is important. However, I have concluded that the information sought by the Union representatives was relevant and not having that specific information frustrated their capacity to make constructive proposals.

Meaningful Consultation:

I note the opinion of Advocate General’s Opinion delivered on 21st June 2018 [ Opinion of Advocate General Sharpston] in Miriam Bichat (C-16/17), Daniela Chlubna (C-62/17), (C-72/17) v Aviation Passage Service:

44. The consultation process should, in every sense, be meaningful. It is not intended to be a purely symbolic exercise. Indeed, the essence of the notion of ‘consultation’ is that both sides may achieve a constructive result through discussion and negotiation that might otherwise not have been achieved. The employer mut therefore ensure that the consultations in question pursue a worthwhile purpose. It is the employer which must undertake them; it cannot rely on a failure by the decision-making undertaking to provide the necessary information and must bear the consequences of such a failure. (21) It is therefore essential that information be provided to the employer by the correct source.

In assessing whether or not the process was meaningful the actions and behaviour of both the employer and the union representatives must be analysed from the time that the consultation process was required to begin. I have determined that the process was required to commence no later than the 9th of April 2020. Having regard to the fragility of this Company and the perspective of a 30-day consultation period; commencing the consultation on the 17th of April 2020 was not in good time.

The consultation process can start without all relevant information being available to share. In Akavan Erityisalojen Keskuslittory and Others v Fujitsu Siemens Computers Oy Case C-44/08, the Court determined that the obligation to start consultations on the collective redundancies contemplated does not depend on whether the employer is already able to supply to the workers’ representatives all the information required under Article 2(3)(b) of Directive 98/59.

As detailed the relevant information sought by the workers’ representatives was necessary so that they could make constructive proposals and was not supplied to them as requested.

 I note in Claes v Landsbanki Luxembourg SA, in liquidation joined cased C-235 /10 to C-239/10 the Court stated:

“Until the legal personality of an establishment whose dissolution and winding up have been ordered has ceased to exist, the obligations under Articles 2 and 3 of Directive 98/59 must be fulfilled. The employer’s obligations pursuant to those provisions must be carried out by the management of the establishment, or by its liquidator, where that establishment’s management has been taken over in its entirety by the liquidator.”

Therefore, the breaches under Article 2 are maintained until the legal personality of the entity ceases and the obligations under Article 2 must be carried out by the management of the establishment or by its liquidator, where that establishment has been taken over in its entirety by the liquidator.

I note that in Tangey Birmingham J concluded that:

25. Returning then to the decision of the Employment Appeals Tribunal in the present case it does seem to me that the determination approached the controversy before it as essentially one of fact and decided as a matter of fact that the communication by Dell on 8th January, 2009 did not constitute notice of dismissal and that the employer had commenced the consultation process at an appropriate stage. It seems to me that the reference to the entitlement of the employer to make a strategic decision in the concluding paragraph of the determination must mean that the Employment Appeals Tribunal was taking the view that the employer had, as it was obliged to do, embarked on consultation when a strategic or commercial decision compelling it to contemplate or plan for collective redundancies had been taken. If one looks at what happened subsequent to 8th January, 2009, further evidence emerges that the letters of 8 th January, 2009 were not simply the communication of what was a fait accompli. Many of the matters of substance contained in the letter of 8 th January changed between that date and the end of the consultation period on 27 th March. A number of employees were redeployed and as a result their employment was never terminated, the actual leaving dates for several production lines were different from the dates suggested in the initial letters and there was a significant improvement in the severance package available to employees.

There was a stark difference in the financial fortunes of Dell and Debenhams Retail (Ireland) Limited. However, the comments made by the Judge captures the reality of a meaningful engagement and consultation where what was originally tabled was changed in a meaningful way. It was argued by the Respondent Counsel that this was not possible in this case; however, that can never have been truly tested as relevant information was not shared with the workers representatives. However, on the evidence there was no material change in any element of the collective redundancy proposal as detailed at the outset and no mitigation to limit the effects on the workforce was made. While that does not mean with certainty that no meaningful consultation did occur, it is more likely that is so.

CA-00039268-001

The consultation process required to commence on the 9th of April related to the employer who is Debenhams Retail (Ireland) Limited

9.— (1) Where an employer proposes to create collective redundancies he shall, with a view to reaching an agreement, initiate consultations with employees’ representatives

(2) Consultations under this section shall include the following matters—

(a) the possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or mitigating their consequences] by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining employees made redundant],

(b) the basis on which it will be decided which particular employees will be made redundant.

(3) Consultations under this section shall be initiated at the earliest opportunity and in any event at least 30 days before the first notice of dismissal is given

I find the complaint to be well founded.

The process was required to commence earlier than it did. The consequence of commencing the process when the liquidators were appointed did narrow the options available to reduce the number of redundancies and to mitigate the consequences for those employees who would lose their jobs. The process when it started was not conducted in a meaningful way by the Employer as relevant information necessary so that the worker representatives could make constructive proposals was not to supplied to them. There is no evidence of any material change in what was proposed at the outset of the consultation and what was implemented. Having regard to these conclusions I determine that the Employer failed to meet the requirement to consult pursuant to section 9 of the 1977 Act and the Directive 98/59.

CA-00039268-002:

 Section 10 requires:

10.— (1) For the purpose of consultations under section 9, the employer concerned shall supply the employees' representatives with all relevant information relating to the proposed redundancies.

The Respondent stated that they did all in their power to provide all relevant information and that the requirement was relevant information and not all information was provided. The distinction between all relevant information and all information is important. However, I have concluded that the information sought by the Union representatives was relevant and not having that specific information frustrated their capacity to make constructive proposals.

I find that the complaint is well founded.

Section 11 A provides that:

11A. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 9 or 10 shall do one or more of the following, namely—

(a) declare that the complaint is or, as the case may be, is not well founded,

(b) require the employer to comply with the provision of the Act of 1977 concerned and, for that purpose, to take a specified course of action,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

At the hearing and in their submission the Complainant’s representative stated:

Adjudicator, We are asking you to find a) Find that the Respondent breached it’s obligations under the Acts b) Declare that our case is will founded c) Order that compensation of 4 week renumeration be paid to the complainant calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977

Section 9 and 10 provide for two separate breaches. However, in this case as the case for the maximum award has not been made out on the case before me, I am obligated to award in total 4 weeks. As I have determined that both complaints are well founded I award the following compensation:

CA-00039268-001 Breach of Section 9 Compensation

2 weeks x €445=€900

CA-00039268-002 Breach of Section 10 Compensation

2 weeks x €445=€900

In total I award €1800 in compensation to the Complainant and require the Respondent to pay that amount to her.

Consultation-Relevant information