Complainant

Respondent

Parties

Gareth Elliot

Legs Eleven Limited

Representatives

Conor McCrave, Setanta Solicitors

Peter Dunlea, Peninsula Ireland

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-00061670-001

20/02/2024

The respondent runs the “Bingo Loco” stage show in clubs and venues around the world.  The complainant joined the business in September 2021 as a digital marketing executive.  Six months later, he was promoted to the role of content marketing manager, on a salary of €35,000.  His job was to manage email communication with prospective clients, to manage social medial content and to carry out search engine optimisation (SEO).  Until his job was made redundant in November 2023, the complainant was based in Amsterdam and he worked from home.

At the end of October 2023, due to a downturn in tickets sold in the previous three months, the respondent decided to make the complainant’s job redundant.  His employment was terminated on November 30th.  Based on his service of two years and two months, he received a statutory redundancy payment of €3,240.

The complainant claims that his dismissal was unfair, and that he could have been assigned to a role as a social media marketing manager for which a new person was hired in September 2023.  He also claims that a videographer was hired on a freelance basis, and that this person took on some elements of the work that he used to do.  The respondent’s position is that the complainant hadn’t got the right experience for the social media marketing role.  They submitted that the SEO element of his job is no longer done and that the remainder of his job is now done by the head of digital marketing, who was the complainant’s line manager.

Evidence of the General Manager, Mr Stephen Kelly

At the opening of his evidence, Mr Kelly said that, in November 2023, the company had 15 employees and that eight people were employed on the day of the hearing, May 13th 2024.  He said that in addition to the redundancy of the complainant’s job, a sales job was also made redundant in November 2023.  The full-time videographer has been replaced by a freelance hire and there have been several resignations and the roles have not been filled.

Mr Kelly said that in October 2023, following three consecutive months of a downturn in ticket sales, the leadership board concluded that revenue was not being generated from the company’s marketing initiatives.  He said that operational cost-savings were required and consideration was given to the possibility of making the job of marketing content manager redundant.  Mr Kelly said that, on November 9th, he had a video meeting with the complainant at which he informed him that his job was at risk.  He said that the business decided to rely on targeted advertising on social media platforms and some email marketing was assigned to the head of the marketing department. 

On November 10th, in the knowledge that a new person had recently joined the marketing department, the complainant wrote to Mr Kelly and asked him if there was any alternative to redundancy.  Mr Kelly said that they had recently recruited a social media marketing manager, but it is his view that this is not the complainant’s area of expertise and he wasn’t considered for this job.  In a video call on November 16th, Mr Kelly said that he confirmed to the complainant that his job would be made redundant on November 30th.  A copy of a letter to this effect was included in the respondent’s book of papers at the hearing.

Cross-examining of Mr Kelly

In response to questions from Mr McCrave, Mr Kelly said that the rationale for making the complainant’s job redundant was due to “commercial struggles,” consecutive losses between August and October 2023 and the need to re-structure the marketing department.  Mr Kelly produced documents showing the actual versus projected income from September 2023 to January 2024.  He said that the losses were based on low fill rates at shows.  Operating profits for 2022 and 2023 were between €600,000 and €800,000.

Mr Kelly said that the complainant’s role was selected for redundancy because the leadership board’s opinion was that it wasn’t generating revenue.  A decision was made that paid social media would be a better option compared to content management.  When he met the complainant by video call on November 9th 2023, Mr Kelly said that he told him that his job was under review and that it would take a week to make a decision.  Mr Kelly confirmed that he received an email from the complainant on November 9th in which he asked him to consider an alternative to redundancy. 

Asked why the possibility of the complainant doing a social media marketing job wasn’t considered, Mr Kelly said that the company was looking for someone with a couple of years’ experience in a “paid social role” and that the complainant had never shown that he had skills in advertising campaigns or targeted advertising.  He said that he considered the complainant’s CV and he didn’t see how he could take on the social media role.  The skills he had gained in his two years with the company were not in the area of social media.  He said that the job that had just been filled was “a lot more than just marketing” and that there was a requirement to contact venues.

Mr Kelly said that the company hadn’t got time to provide training to the complainant to allow him to take on the region to be covered by the new social media role.  He said that the person recruited had experience in an agency doing social media advertising.  He added that that person left the business in January 2024, as they were not right for the job.

Mr McCrave suggested to Mr Kelly that from November 9th until the 16th wasn’t a lot of time to consider an alternative to making the complainant’s job redundant.  Mr Kelly replied that the alternatives were very limited and that there was only one other job that could have been considered.

Mr Kelly agreed that the company recruited another social media manager after the complainant was made redundant.  The social media jobs are based on “regions” in Ireland, Northern Ireland and internationally and one of the incumbents moved to the international job.  As a result, there was a vacancy for the Ireland social media marketing job.  A freelance videographer was recruited in October, before the complainant’s job was terminated.  The videographer’s job is to do on-street videos after shows and some comic pieces.  Mr Kelly said that the manager then adds the narrative and uploads these to social media sites.

The respondent’s submission refers to the diminished return on the complainant’s email marketing work, which used to be profitable, and a diminished return on SEO work.  Mr McCrave suggested that this indicates that the redundancy of the complainant’s role was related to his performance.  Mr Kelly said that there were no performance issues and that the company’s focus needed to be on social media rather than Google analytics or email marketing.

Evidence of the Complainant

When his job was made redundant in November 2023, the complainant said that he hadn’t updated his CV for two years and that he had written it to apply for the role he was in.  He said that he has eight years’ experience in marketing and that, for the first six months of his role with the respondent, he worked on paid advertising.

The complainant said that he was one of the longest-serving employees in the company and he thinks that his skills were transferable to other roles.  He thinks that no effort was made to explore an alternative to making him redundant.

On November 16th 2023, when he received confirmation that his job was redundant, the complainant said that he wrote to the general manager, Mr Kelly, asking him a number of questions.  He got a reply with details of the projected versus actual revenues for the months of August, September and October 2023.  He was told that email marketing wasn’t performing, although he said that he achieved the targets he was set.

Referring to a number of social media posts uploaded by the company after he was made redundant, the complainant said that the freelance videographer uploaded the posts.  He said that the narrative is in the tone of voice of the videographer.  He said that it is not the role of a videographer to create copy.  He referred to a message on the company’s internal messaging system in which the videographer told the complainant that they were going live with a video on a social media site.  The complainant said that this is the job of a content marketing manager.  Other parts of his job were assigned to his manager.

The complainant said that he doesn’t believe that he was fairly selected for redundancy, and that others are now doing the job that he used to do.  He said that he should have been asked for an updated CV and been asked about his skills.  He repeated that he was the longest-serving employee on the marketing team.  With a better look at the financials, the complainant said that a different decision could have been made.

Cross-examining of the Complainant

Asked by Mr Dunlea how he knows that the videographer posted the videos on social media, the complainant said that he is 100% sure of this and he referred to the videographer’s statement about “going live on the gram.”  He said that it is very unusual for a videographer to post content.

The complainant agreed that he had never been criticised about his performance.  He said that he saw the August to October revenue report, but he was not told that the company was in financial difficulties.

The complainant said that he believes that his dismissal was unfair because he is more skilled than the people who were hired after him.  He said that no effort was made to “slot me in” to a different role.  When he joined the business, he had done a mixture of social media and content marketing and after six months, he was confined to content marketing.

The Relevant Law

It is the complainant’s case that it was unfair to make his job redundant and not to consider him for an alternative job, but to leave in place employees with less service than him.  His complaint falls to be considered under the Redundancy Payments Acts 1967 – 2014 and the Unfair Dismissals Acts 1977 - 2015.

The Redundancy Payments Acts 1967 - 2014

Section 7(2) of the Redundancy Payments Acts (“the RP Act”) sets out five definitions of redundancy at subsections (a) to (e).  Considering the case made by the respondent that the complainant’s job was distributed among the remaining employees, his dismissal would appear to fall within the definition of redundancy at section 7(2)(c):

…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to –

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise[.]

The evidence of the general manager, Mr Kelly, is that between November 2023 and May 2024, the number of employees working in the company was reduced from 15 to eight.  The complainant’s job of content marketing manager was one of the roles eliminated.  The SEO part of the complainant’s job is no longer done, and other parts of his job are done by a freelance videographer and by his manager.  Based on these facts, I am satisfied that a genuine redundancy situation existed when the complainant was dismissed in November 2023.  I must now examine the case made by the complainant that the process that resulted in his redundancy was unfair, and that it was unreasonable for the respondent to select him for redundancy before considering him for a role in social media marketing.  A new person was hired for this job in September 2023, and another role was filled shortly after the complainant was dismissed.

The Unfair Dismissals Acts 1977 - 2015

Section 6(1) of the Unfair Dismissals Acts 1977 – 2015, (“the UD Act”) provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant.  Their position is that he was dismissed due to redundancy because his job of content marketing manager wasn’t generating enough revenue, although there was no criticism of the complainant’s performance and he said that he achieved the targets he was set.                        

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

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

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

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

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

Section 6(2) which is referred to above as “subsection (2)” addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters that are not relevant to the complainant in this case.

In the complainant’s case, “the circumstances constituting the redundancy” was the respondent’s need to reduce losses and to generate more revenue.  It was evident at the hearing that these circumstances impacted on the job of the complainant and on the job of one other employee in a sales role.

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

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

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

Section 14(1) of the UD Act provides that an employee is entitled to a written notice of the process to be followed in the event of the termination of their employment.  I note from the contract of employment which was included in the documents submitted at the hearing that the dismissal procedure was available from the respondent’s HR office.  A copy was not included in the respondent’s documents at the hearing and the complainant’s contract contained no reference to redundancy.

Section 7(2)(d) of the UD Act provides that, if I find that the dismissal of the complainant was unfair, an award of redress must take account of the employer’s failure to adhere to any procedure that was in place regarding the process to be followed at the termination of his employment.

In the case of this former employee, he was not a member of a trade union and no evidence was submitted of the existence of a procedure for implementing redundancies.  In the absence of an agreed procedure, the respondent was required to ensure that the fair procedures that apply in the case of any dismissal were afforded to the complainant.  These include the right to notice, the right to be represented at meetings, the right of the employee to respond to the employer’s decision to make his job redundant and the right of appeal. 

Findings

In general, aside from the complete closedown of a business, redundancy is not a neat and tidy exercise.  A job may be eliminated, but the employee may be capable of doing a different job or, they may be capable of doing the same job in another part of the organisation.  With some training and support, an employee whose job is redundant may be suitable for a different job altogether.

Section 15 of the RP Act was amended by the insertion of two new subsections, (2A) and (2B), to provide for a trial period for an employee to consider if an alternative job is suitable.  It seems to me that the objective of these amendments is to avoid the dismissal of an employee, even if the alternative job is not a direct match with the eliminated job.  These amendments provide that,

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

(2B) Where -

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

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

From this, it is clear that the legislature intends that before reaching a decision on redundancy, an employee may be permitted to try out a different job.  When an employee whose job is at risk asks to take on a different role, it is incumbent on an employer to consider that request.  The complainant is an experienced marketing executive, but the respondent decided that he was unsuitable for a different marketing job for which a vacancy had arisen.  It is my view that, in November 2023, when they were contemplating the future of the complainant’s job, he should have been re-deployed to the role of social media marketing manager and he should have been permitted to take up that job on a trial basis before any consideration was given to dismissing  him.

Conclusion

By carrying on the business with less employees and by assigning the complainant’s job of content marketing manager to others in addition to their own work, I am satisfied that the redundancy of the complainant’s job meets the definition at section 7(2)(c) of the RP Act.  While the job of the complainant was redundant, I find that his dismissal was unfair for two reasons. 

Firstly, the respondent made no effort to avoid dismissal by redeploying the complainant to a role as social media marketing manager, as he suggested.  The complainant should have been permitted to try out this role for a trial period, and his performance should have been reviewed to determine if he was suitable in the long term.  If his performance was found to be unsatisfactory at the end of the trial period, he could have been made redundant at that point. 

Secondly, I find that the process that ended with the complainant’s dismissal was not consistent with a standard procedure for making employees redundant.  Having been notified on November 9th 2023 that his job was at risk of redundancy, on November 16th, the complainant was informed that he would be dismissed.  His employment ended two weeks later, on November 30th.  He was never informed of his right to be accompanied or represented at meetings and he wasn’t advised of any appeal process.  Some professional support, or even the support of a colleague, may have had the effect of slowing down the decision to terminate the complainant’s employment, and may have provided space to arrive at an alternative outcome.

I have decided that this complaint is well founded.  In accordance with section 7 of the Unfair Dismissals Act 1977, I must make an award of redress in the form or reinstatement, re-engagement or compensation, as I consider appropriate.  As the complainant started in a new role on January 24th 2024, I decide that compensation is the appropriate form of redress.  I therefore direct the respondent to pay the complainant compensation of €5,400, equivalent to eight weeks’ gross pay.  As this compensation is in the form of loss of earnings, it is subject to the normal statutory deductions.

Dismissal, alternative to redundancy, redundancy procedures