Complainant

Respondent

Parties

Paul  Atkinson

PFH Technology Group

Representatives

Byron Wade BL instructed by  Healy O'Connor Solicitors

Cara Jane Walsh, BL instructed by Ronan Daly Jermyn,  RDJ LLP

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-00058395-001

21/08/2023

On 21 August 2023, the Complainants Solicitor submitted a complaint under section 8 of the Unfair Dismissals Act, 1977 that the complainant had been subjected to a Sham Redundancy on 24 March 2023 and unfairly dismissed.

The Respondent was notified of the claim one day later. The Respondents Solicitors came on notice on 24 August 2023.

The Claim came to hearing on 24 January 2024.

The Complainants outline submissions were received on 19 January 2024

The Respondent outline submissions were received pre hearing and shared.

Both Parties were legally represented during the case. The Complainant took the affirmation to accompany his evidence, both Ms. Holmes and Ms. Manning, witnesses for the Respondent took the oath to accompany their evidence.

I have agreed to anonymise the client company on application by the respondent at hearing.

During the hearing, and in the absence of any representative from the Client Company, my interest arose in the circumstances surrounding the Service Level Agreement (SLA) referred to in the case.

This was the document which I expected would serve as a foundation document of secondment/ outsourcing between Company A and Company B. I sought sight of that document to assist in my Inquiry.

I was also interested in whether any record of performance appraisal was available to me?

On 31 January 2024, the Respondent confirmed that a written copy of the SLA had not been located and emphasised the relevance of a Purchase Order in its place. This Purchase Order constituted a record of the transacted arrangement which underpinned the complainant’s position in the client company. The Respondent directed me also to both witnesses’ oral evidence on this topic.

Complainant response:

On the next day, February 1, 2024, the Complainant representative objected to the respondents’ efforts to substitute a Purchase order for the requested SLA and opposed the document being accepted in evidence.

Neither side submitted any concrete records of performance appraisal.

The Respondent is an Information and Communications Technology Company with over 700 employees. I will refer to this as Company A.

The Respondent placed the Complainant, an Infrastructure Business Integrator on the site of Company B. The contract of employment was dated 24 April 2018, with a start date of 5 June 2018. The form of acceptance was signed by the Complainant on 30 April 2018. This was his sole work placement with the Respondent.

The Respondent denies that the Complainant was unfairly dismissed.

Ms Walsh BL outlined a background to the events of the case in her outline submission.

During November 2022, The Respondent through Mr A, Services Director, informed the complainant that his role, a standalone position, would cease at the client site B in December 2022. It was anticipated that the complainant would be assigned to another open role with the Respondent.

The process of seeking to match the complainant to another role at Company C commenced immediately. The Complainant was initially hesitant around the retention of the four-day work pattern but indicated that he was happy to be considered for the proposed role at Company C, due to commence in January 2023. However, Company C did not require the additional headcount.

On 19 January 2023, the Respondent informed the complainant that he was at risk of redundancy and continued to scope out the potential for alternative roles for the complainant.

The Complainant remained at home during this period with use of the company van. He availed of annual leave. The Complainant inquired of the potential for an enhanced redundancy package in the eventuality of redundancy.?

On 8 February 2023, the Respondent announced a two-week consultation period with a special emphasis on scoping out opportunities for redeployment within the respondent company. EAP was made available.

By 20 February 2023, the Complainant had missed a link up call on 15 February 2023, and the parties engaged on 20 February 2023, the complainant was placed on one month paid notice of the termination of employment. This period would conclude in redundancy.

“If no internal role at the respondent had been secured by the complainant “

38 open positions were issued for the complainant’s consideration.

21 February 2023    Level 2 Support Engineer role, initially 3-month contract, materialised. Company D

                                     The Respondent offered to forward the Complainants CV, but this was vetoed by him due to diminution of salary.

27 February 2023   Engineer for a full time 12 month rolling contract at Company E 

                                    A separate vacancy made known at company F, CV submitted but no one called to interview.

15 March 2023 The Complainant sought that his CV would be submitted for Company E post.

16 March 2023     Company E were not sure CV suitable for the vacancy.

20 March             Complainant commenced unpaid leave. Company E deemed the CV submitted as unsuitable.

24 March 2023    The Respondent confirmed the Redundancy on the basis that no further roles were available. The Complainant was permitted to retain the company vehicle.

As a gesture of good will, the Respondent paid the complainant pay and pension at the 5-day week rate from 1 January 2023 to 17 March 2023

On the hearing day, Ms Walshe submitted that the dismissal arose from a genuine redundancy which followed the clients ending of the contract. There was no backfill in the position and the Complainant, in his stand-alone role was made aware of the cessation day.

A period of real and substantial consultation followed in an effort to avoid redundancy followed from November 2022 to March 2023. This was underpinned by furnishing CV s to potential alternative postings but was unsuccessful.

The Respondent engaged in an open correspondence with the Complainant throughout and prioritised the situation which followed the contractual end. EAP support was offered.

The Redundancy was genuine and impersonal.

Summary of Ms Carmel Holmes by Oath:

Ms Holmes commenced in role in November 2020 and is head of a 6-person talent acquisition team and has 20 years’ experience in recruitment. She is responsible for head count in the Managed Service Sector, where the core objective is set as staff are hired specifically for assignment.

The Complainant was assigned to Company B through a Service Level Agreement, renewed annually on 31 December. It was not a permanent assignment.

There is no clear contingency when a contract comes to an end and circumstances enter a fluidity around re -hire.

By mid-November 2022, Company B had notified the respondent that they no longer required the employee due to cost reasons.

Company B declared that the post was not being back filled.

Ms Holmes recalled that an alternative role was anticipated for the complainant at Company C and arranged for him to keep the company van a little longer. She submitted that the complainant was not keen to put his name forward and she herself was concerned that US Companies set a required prerequisite for a Level 8 qualification. She also encouraged him to reconsider his reluctance to revert to a 5-day work pattern to aide redeployment.

This was her first encounter with the complainant, who did not make any pronouncements on learning of the job conclusion. He agreed to receiving updates and proceeded on annual leave until January 16, 2023, when the new role was expected to go ahead.

Company C did not proceed to hire as they did not have head count clearance. Further efforts were made to place the complainant.

The Respondent manages to place on average 9 people annually across 4 job titles.

When requested if the Company operated a Policy on redundancy, she deferred to the second witness, Ms Manning.

Ms Holmes engaged in an active exploration of possible placements for the complainant. By 8 February 2023 the complainant had been unsuccessful in finding a replacement role

8 February unsuitable

15 February no attendance

21 February, 3-month role refused by the complainant due to distance.

27 February CV in Company D, but deemed unsuitable, no interview.

The Complainant also refused a potential for placement in a Lab in Dungarvan due to distance.

Ms Holmes provided a snapshot of open roles to the Complainant during February 2023.

Ms Holmes detailed the process surrounding recruitment via a Purchase Order

1 Hiring Manager declares an active recruitment process.

2 Finance approval

3 shared with the respondent

Triggers a search for the position.

By March 10, 2023, Ms Holmes submitted that another Company had expressed need for headcount, but the Complainant had not fed back.

During cross examination,

Ms Holmes confirmed that she had worked as a Recruiter across the US and Irish Pharma Industries.

She confirmed that the position vacated by the complainant had not been back filled and sought to explain the advertisement relied on by the complainant as a “legacy “on a Ads web site and referred to the historical employment of Mr Z, who held the same role as that of the complainant ,( 9 April 2021 to 9 July 2021)  and for which the respondent did not have a permission to advertise . As Mr Z did not attend the hearing, this was submitted as hearsay evidence.

She confirmed that the complainant had refused to increase his hours to 5 days. She was unaware that he had Citrix or management experience prior to December 2022.

She rejected that a move to redundancy was odd with the volume of multi-agency activity at company B. Ms Holmes responded by stating the respondent was not the first call agency.

She confirmed there were no performance concerns regarding the complainant.

She confirmed that she had asked Company B if they needed a back fill.? Ms Holmes rejected Mr Wades contention should have questioned a much broader grouping within company B.

In re direct, Ms Holmes confirmed that she had taken Company B at face value and had endeavoured to source alternative work for the complainant, yet nothing had developed by March 2023

In clarifications, Ms Holmes confirmed that the company had not considered temporary layoff in the complainant’s case and the efforts had been extended to redeploy him to an alternative role.

The cessation of contract was communicated via phone and there were no documents. This prompted me to request sight of the SLA.

The final imprimatur rests with the hiring manager. The Respondent did not operate a performance appraisal system.

The employment ended as there was no alternative job or backfill.

Ms Holmes confirmed that December 31 reflected the annual review of the SLA.

Evidence of Ms Susan Manning, Director of Human Resources, by oath.

Ms Manning has 25 years’ experience as Senior Human Resource Lead a two-year history as Director of Human Resources with the Respondent.

She outlined that she was not normally involved in   the circumstances that led to this case, but she was aware that Company B had decided not to continue with the Complainants’ placement after 31 December 2022 and “we wanted to do our best “She knew that a Senior Manager had placed the complainant on notice of redundancy from mid-December 2022. Ms Mananing confirmed that she had not seen the documents surrounding this decision.

She submitted that redeployment was the first option considered by the respondent.  The role flagged at Company C was a comparable role, where an interview would have been a prerequisite. This option was withdrawn when Company C did not give the go ahead for the hire.

Ms Manning outlined that the Respondent the need to speak with the complainant and during the Teams Call on January 19, 2023, a combination of payment and annual leave was the agreed holding position.

She was not aware of any opportunities on site and agreed that the complainant could retain the company van. He was also offered an outplacement programme.

The Complainant had queried whether the redundancy pay could be increased?

Ms Manning submitted that she had discussed the situation with Mr X, a Senior Manager with the Respondent, as there had not been redundancies before this. The Policy was Statutory Redundancy with 4 weeks’ notice.

Ms Manning issued a letter on February 8, 2023, but did not receive a response.

By February 20, 2023, the Complainant was encouraged to ask questions, but he did not address anything outside of a query regarding his January pay slip.

The Complainant availed of some unpaid leave for one week and remained at home from 16 December 2022.

Ms Manning submitted that the Company had drafted, but not operationalised a Policy on Temporary Layoff from November 2022.

She added that the complainant had not challenged the decision to make him redundant at any time through the grievance procedure.

Ms Manning was clear that there were no performance concerns which involved the complainant. He was not on a performance improvement plan and no disciplinary action had been taken against him by either company A or B.

During cross examination, Ms Manning confirmed that no redundancies occurred in 2022 and the company was proud of that. The company was 30 years in being.

There had been “minimal redundancies “in 2023.

The Client site, company B had not raised any issues around the complainant and the respondent had not detected any issues.

She agreed   that the “whole area was fluid “in terms of placement. Quarterly meetings with the client were not established practice.

Ms Manning replied that if the complainant had been placed on lay off, he would have been recalled but accepted that he was not recalled.

In redirect, Ms Manning confirmed that an annual bonus was paid in January. There is provision for lay off in the new contracts.

The arguments:

Ms Walsh has argued that the dismissal in this case cannot be classified as unfair when consideration is given to the application of Section 6(4) (c) of the Unfair Dismissals Act, 1977.

She submitted that the dismissal arose wholly or mainly from Redundancy, by operation of section 7(2) (b) of the Redundancy Payments Act, 1967, which is the defence in the case. The Complainant was not replaced.

“The manner by which the complainant work was carried out, has now ceased to be carried out at the Respondent client. “ 

In Suretank ltd v Declan Kilmartin UDD 1931, the respondent emphasised that the Labour Court had accepted the defence available to them in Section 6(4) (c) and consequently a claim for unfair dismissal failed.

Ms Walsh contended that the same circumstances had application to the instant case.

The topic of the complainant’s standalone role as Infrastructure Business Engineer placed him outside the concept of a fair selection for redundancy.

The Respondent relied on ADJ 23957 A Complainant v a Financial Technology Company here.

In addressing the reasonableness of the process surrounding Redundancy, Ms Walshe drew from a UK EAT case on the equivalence of Section 6(3) of the 1977 Act.

Williams v Compare Maxam ltd [1982] ICR 156, approved in UK Court of Appeal in Walls Meat Company ltd v Selby [1989] EWCA Civ J0203-8

“ ….. if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee for dismissal “

1.       As much warning as possible

2.       Consultation

3.       Employer will seek to establish criteria for selection.

4.       Consideration of representations

5.       Is alternative employment available?

The Respondent reflected that the dismissal on grounds of redundancy was a reasonable and impersonal response to the circumstances where the Service Level Agreement had ceased. As he was the sole post holder, selection did not arise as a measurement tool of the fairness of the dismissal.

The Respondent presided over a full consultation process from mid-November onwards and the complainant’s queries were answered.

The Respondent engaged in repeated attempt to find alternative work within its client base but nothing materialised. The Complainant expressed a disinterest in some of the options he was offered. He was hesitant in making himself available for a more marketable 5-day work pattern. He did not accept CV and interview skills. He retained full use of the company van to 31 March 2023.

 The Complainant was paid a statutory redundancy of € 6,372.00.

The Respondent took issue with the complainant’s evidence of loss and mitigation and in particular the paucity of detail from November – January argued in the event that the dismissal was found to be unfair consideration must be given to the shortfall in the complainant’s evidence of loss and mitigation in addition to the pre-existing payment of statutory redundancy and the good will payment.

The Complainant was employed by the Respondent Company from 5 June 2018 to 24 March 2023. His monthly nett pay stood at €3,407. He was placed to work as a Business Infrastructure Integrator with a client site B.

The Complainant operated on a 4-day week for personal reasons from October 2021, with commensurate reduction in salary to €2, 971.80. nett.

The Complainant identified compensation as his preferred remedy in the event of success in his case. He gave evidence on loss and mitigation, where he had found limited new work on a Project from June -November 2023 and was out of work on the hearing day.

There was a notable paucity of detail on the original August 2023 complaint form.

The background detail was eventually provided by means of an outline submission a week prior to hearing and can be summarised as:

The Complainant case is that he was unfairly dismissed from his position of Business Infrastructure Integrator due to an alleged redundancy which was disguised as a dismissal on 24 March 2023, conveyed by letter issued by Ms Manning, People Director, on 27 March 2023

“On 24 March 2023, following a call with myself, we agreed that there were no further roles for you and your role was made redundant as of that date “

The sum of €6, 372.00 was paid in statutory redundancy.

The employment relationship in this case is triangular and was described by the Complainants representatives as “an open-ended contract of potentially unlimited duration “

The Complainant was hired by the Respondent, a Recruiter and placed for work purposes at a third-party chemical plant. Company B.

He was based at Company B for the duration of employment. The placement there ceased in December 2022 when his contract was not renewed due to “costing too much “and references to his performance. His employment continued until March 2023 when the contested redundancy occurred.

The Complainant representatives argued that the sole redundancy as relied on was not impersonal and instead constituted a “misuse of the redundancy process”.

They contended that the consultation process prior to dismissal was unreasonable and was without alternative options.

On the hearing day, Mr Wade, BL for the Complainant submitted that the redundancy was not genuine. He added that the Respondent had advertised the complainant’s role and an acquaintance of his got the job. This was strongly disputed by the Respondent and addressed in evidence. He stated that the action of redundancy was a breach of loyalty and fidelity and the outcome of a client-imposed decision by company B.

He pointed to the illogical premise of an IT expert being made redundant.

The Complainant was paid by the Respondent and under the Direction and Control of Company B.

It was the Complainant case that references to his work performance in the negative placed the dismissal on a personalised footing, rather than the impersonality demanded in a genuine redundancy.

“… The reason for ending his employ is specific to the man himself rather than his works no longer being needed “

Summary of the Complainants Evidence under Affirmation

The Complainant outlined that he had worked on the client site of company B since his being hired in 2018. He worked there through a combination of 5 day and latterly 4 days until his dismissal due to redundancy in March 2023. It was a hands-on role.

He was expected to attend work during the pandemic, and he did so.

By mid-2021, personal issues arose for the complainant and both he and company B agreed on a 4-day week to permit time with parents.

He had a bereavement in late 2021 and on his return to work, he was requested to return to 5 days, which he refused on compassionate grounds. He interpreted that the 4-day pattern wasn’t welcomed by company B.

He recalled that his relationship with his manager deteriorated from then on. He did not demonstrate an interest in what the complainant was doing and became disconnected, whereas, previously, the relationship had been good.

Projects were pushed to others.

He recalled that as his was a standalone post, nobody else could do that job. He described the depth of the role and stressed it was hands on and not robotic.

In November 2022, a habitual weekly meeting was cancelled. The following week, he learned via Teams that his contract was not being renewed.

There were already two Interns placed at Company B by the respondent and he contended these were a cheaper option for the respondent. He was unaware when these posts commenced or what title they carried.

He was unaware of an appeal of the redundancy.

There was no focus on permanent role.

The complainant gave evidence of loss.

During cross examination, the complainant explained that he did not accept that a genuine redundancy had occurred as it had been a circumstance of deteriorating relationship and disconnect, coupled by a failed attempt to impose a 5-day working pattern.

The Complainant confirmed that he had sought a reason for his redundancy from client B, who replied that it was a financial reason, but he himself suspected that performance was the reason.

The Complainant confirmed that he had worked with Ms Holmes in an ongoing engagement November – March 2023.  This followed the first notification of change by the Respondent Manager in November 2022. He had expected to secure a posting at Company C and didn’t appreciate the importance of the 5-day pattern until January 2023.

He submitted that he heard redundancy option first before alternative roles were discussed.

He accepted that he was notified of EAP, CV skills and Interview skills.

He had indicated that he was prepared “to go anywhere “to the respondent. In addressing the 38 open jobs from 20 February 2023, he explained that wages had halved in one and another did not make an offer. He had hoped that the job opportunity at the Lab would emerge.

He could not recall why he missed the 15 February engagement. He had availed of annual leave but was hopeful of a potential placement.

He understood the goodwill payment to reflect 5 days at the conclusion of his employment.

He confirmed that he had handed over to the Interns when he left employment.

Mr Wade relied on a large body of case law which cautions against employer misuse of a redundancy process for reason for dismissal.

Zeus Packaging Group v O’ Hara UDD 2269. unfair selection for redundancy / lay off.

JVC Europe ltd v Panisi [2011] IEHC 279 Sham Redundancy

Nurendale unltd v Phelan UDD 1826 Sham Redundancy

He contended that the client site had indicated that the complainant was too expensive to retain, yet he was not met by a proposed pay cut. He had previously reduced his hours to a 4-day week.

Mr Wade rejected any inference of poor performance in the complainants outline submission.

In closing remarks, Mr wade contended that the dismissal that occurred in this case was not a genuine but rather a sham redundancy.

The Respondent was party to a contract of employment that provided for mobility. The Complainant was placed on client B site for the duration of employment. He submitted that the dismissal which occurred disguised as a redundancy.

He pointed to a deficit in the respondent’s obligation to advocate for the complainant on the client site, which had not occurred in the case.

The Respondent had not scoped out a fall back or contingency for the complainant. They did not consider the option of lay off. He rejected the retention of the van as “tinsel “in the case.

He maintained that the complainant had mitigated his loss, but he had been unfairly dismissed.

I have been requested to consider the facts as raised in this case and to arrive at a decision on whether this claim for unfair dismissal has succeeded.?

In reaching my decision, I have had full regard for witness oral evidence and all oral and written submissions of the Parties.

As I have referred to in the earlier narrative of this case, this employment comes to this Inquiry as a “Triangular employment” This means that.

1 Company A is the Main employer and the author and custodian of the contract of employment.

2 Company B is an independent company and not a subsidiary of company A, where the Complainant was based.

3 The Complainant possessed a permanent (contract of indefinite duration) with Company A and for the duration of his employment he worked at the Company B site and availed of a Company van provided as part of his employment package from Company A. He was paid by Company A inclusive of pension, bonus and benefits.

It is of note that the opening contract of employment was not revisited post probation. However, both parties are at one on the complainant’s permanent status.

I was unclear as to whether the Respondent acted as an Agent in this instance as defined in Section 13 of the Unfair Dismissal Amendment Act, 1993?

 or whether Company B could be categorised as a “third person “in this case.

I would like to have met a company B representative to help me understand the

“On the ground “reality of the employment relationship.

Mr Wade made reference to understanding that the Respondent was acting as an Agent, with commensurate responsibilities, however, there is nothing before me through submissions at hearing or through CRO search to identify the Respondent as an Employment Agency.

13. Employment Agencies

Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement—

(a) the individual shall be deemed to be an employee employed by the third person under a contract of employment,

(b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

(c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.

To the contrary, the Contract of employment from 2018 recognises the respondent as the Employer who paid the wages, benefits, pension and covered the provision of the company van.

The Respondent has not disputed that they are in fact the correct employer in this case.

Triangular employments, by their very nature are complicated and require careful assessment of the parameters of that employment.

I note the Labour Court decision in AA Recruitment Ireland ltd v Cotter UDD 12/2021, where the Court held that the Agency was the employer in the case and not “the third person “

I have found that the Respondent is the Employer in accordance with Section 1 of the Unfair Dismissals Act, 1977.

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), shall be deemed to be employed by the local authority;

I can proceed to consider the facts of the case as presented by both parties.

The Complainant in this case has claimed that he was an unwilling party to a “sham redundancy “in March 2023 and that his resultant dismissal was unfair causing him to experience an unanticipated “drought “in his employment and financial loss.

The Respondent , on whom the burden of proof rests in this case , in accordance with Section 6(1) of the Unfair Dismissals Act, 1977 has denied that the dismissal amounted to a sham redundancy and maintained  instead that the redundancy was the substantial and  genuine reason for dismissal ,which arose when Company B decided not to extend the Service Level Agreement , which underpinned the Complainants job on the site of Company B .

They added that the respondent behaved reasonably in arriving at the redundancy option following a period of consultation and having had exhausted all alternative options. The Respondent also added a financial cushion to the statutory redundancy payment through a recognition for payment purposes of a five-day week in the closing stages of the employment alongside retention of the company van when the complainant was no longer based on the client site.

The Respondent has relied on Section 6(4) (c) of the Act as their defence in the claim and has submitted that circumstances of dismissal resulting wholly or mainly from Redundancy prevail.

In reaching my decision in this case, I propose to address the facts through the following prism.

1 Was there a genuine redundancy?

2 Was the method of selection fair?

3 Was the dismissal conducted in a fair and reasonable manner and within the band of reasonableness for a reasonable employer?

Was this a genuine redundancy? Did the dismissal arise wholly or mainly from Redundancy.?

Section 7(2) of the Redundancy Payments Act, 1967 defines the circumstances of Redundancy in five scenarios.

2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, 

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

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

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

St Ledger v Frontline Distributors Ireland Ltd UD 56/1994 (reported at [1995] E.L.R. 160 at 161-162)

Placed a firm emphasis on redundancy being impersonal and change related.

The Respondent has relied on the provisions of Section 7(2) (b) as their rationale for the instant redundancy.

Nobody who presented at hearing seemed to have been an active participant in either the construction of the first Service Level Agreement in 2018 or its reported demise in November 2022.I have been troubled by this lack of transparency. I have reflected on the respondents Ms Holmes when she recalled that cessation of the SLA was communicated by phone. I have also reflected on the complainant’s evidence when he confirmed that he learned of his cessation in his role during November 2022. He took some notes of his conversation with the client B Manager and formed the opinion that he was in fact being managed out due to his reduced hours for family reasons.

The complainant did not formalise those views into a directed grievance to either company A or B.

As I am compelled to look below the bonnet in all dismissals linked to redundancy, the parties will appreciate that it would have helped me enormously to understand the Service Level Agreement as it traversed in time the probationary period, the period of contract of indefinite duration and its cessation in December 2022, which has now  led to this case.

I cannot accept the Purchase Order presented post hearing by the Respondent as it is not probative.

Instead, I have considered the invitation issued by the Respondent to the Complainant to join the Company in April 2018. The Complainant accepted a permanent position, based in Company B, with a mobility clause at the company’s discretion.

For me, this created a firm bond between the parties and a defined duty of care.

The Complainant was open in his evidence that he had handed over to two preexisting Respondent placed Interns on leaving.

I accept Ms Holmes evidence that the complainant was not replaced by the Respondent. In Ms Holmes, I found a very committed Manager. However, as the respondent was one of many staff providers, I cannot be certain, outside of hearing directly from the Client B team, that the complainant was not replaced in his role. I accept that he was not replaced by Company A.

The Respondent has relied on section 7(2) (b) as the reason for dismissal.

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, 

In this case, the Respondent has not opened the headcount at the respondent company for assessment. The Complainant was the sole person made redundant during 2022 with minimal redundancies during 2023. I have not established a proven diminishment in the respondent cadre of staff.

 In the Labour court case of Bishops Island Plant hire and Groundworks ltd and Martina Collins Condon UDD 2327, Deputy Chairman, Alan Haugh pointed to a vacuum of accounts or financial statements from the respondent to support the evidence of diminished administrative staff at the plant.

I would have much preferred to have seen a record of the cessation of SLA in November 2022. I have not had the benefit of oral evidence from the decision makers which led to the announcement of cessation.

However, I accept Ms Holmes evidence that the Respondent was not required to send the Complainant to Company B from the cessation of the SLA on 13 December 2022. That was the nett effect for the company.

I have found that the antecedent event which has caused me most concern in this case is the circumstances surrounding the cessation of the SLA. I accept that there is no performance appraisal that might point to animus, JVC Europe Ltd and Panisi [2011] IEHC, 279.I have identified that the Complainant received a €2,000 bonus payment in early 2023 from the Respondent.

The news of cessation broke in November 2022, and this predated the typical renewal date of 13 December annually.

I accept the Complainants own evidence that he had pressing family commitments which led to his reliance on a four-day week and his resistance to its reversal at Client B site. However, while I accept that the complainant held a strong viewpoint that his reduced hours made him vulnerable on client B site, he did not test that theory through the grievance procedure at any time in his employment. For me, he has not proved that “nexus “to his dismissal through redundancy.

I have identified that by the time of the circumstances surrounding his cessation of employment, the complainant was in active contact with his Legal Advisors. It may have been mutually beneficial for the parties to have engaged in a grievance at that point. I am struck by Ms Holmes evidence when she commented that the complainant did not make any pronouncements on the cessation of the SLA. she said that she was not met with a resistance.

Notwithstanding that the Respondent continued to place two Interns in the area where the Complainant worked, I accept that the Respondent was notified of a cessation in the complainants SLA in November 2022, and this propelled the respondent into a next step contingency plan of accommodating the complainant “ in house “ at Client A site assignments .

I would have preferred to have seen real time records of this cessation to aide transparency and minimise a “ second guessing for reasons for  cessation “ I find that  an in excess of four year static employment record deserved a  much better communication that what occurred here and I would strongly encourage the respondent to include a seconded employee in real time records of inter party communication going forward .

I find that the Respondent can rely on Section 7(2) (B) of the Redundancy Payments Act, 1967 as the reason for dismissal. I find that the Complainant was the subject of a declared diminished need for his grade on the site of Client B, when the Respondent was not required to provide head count in this role from November 2022. This caused the climate of redundancy at the Respondent employment. I have identified   a significant shortfall in best practice surrounding the communication and recording of this development by both companies. I would have expected more in large scale companies.

I accept that the complainant’s dismissal arose mainly but not wholly from this redundancy.

2 Was the method of selection fair?

The respondent submitted that the complainant was a stand-alone position and as such not subject to the exigencies on selection normally witnessed in assessing selection for redundancy.

I noted that the Respondent did not have a policy on redundancy and made reference to a latter-day policy on “Lay Off “from November 2022, which was not actioned in this case.

In Redmond on Dismissal Law at Chapter 21, 21.34

Des Ryan BL points to the distinction between redundancy applying to jobs and selection to people. Selection must be on objective grounds.

Section 6(3) of the Act does not come into play here as the Respondent did not have an agreed exit policy e.g. LIFO (last in first out) There was no Trade Union Agreement on redundancies, voluntary or involuntary.

There were no grounds applicable from section 6(2) of the Act.

Instead, the Respondent has relied on the complainant’s role on a client site not being renewed as the basis to selecting him for redundancy.

That was the sole consideration.

Mr Wade has contended that the Respondent stopped short of fairness in selection when they accepted the Client B decision without query.

This is more a matter for the third part of the test.

The Respondent has guided me to the Labour Court case of Declan Kilmartin. However, on a careful reading of that case, the topic of unfair selection for redundancy was not argued, as it has been in the instant case. The Court accepted the respondent defence.

The Respondent has argued that the company B declaration on the non-renewal of role placed the respondent without contingency and into the fluidity and uncertainties of the marketplace.

In the seminal case of

JVC Europe Ltd and Panisi [2011] IEHC, 279 

Charleton made some very incisive observations on the impact of the change that redundancy brings to a worker.

In that case redundancy was found to be “a cloak “for dismissal as relied on by the complainant in this case. The redundancy was found to be constructed as a consequence of poor relationships (animus) rather than a cause for dismissal.

Charleton J set the scene for the objectivity needed in an assessment of the facts, where unfair selection for redundancy is claimed when he remarked.

A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended, the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law, and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer.

The Respondent has acknowledged that they employ over 700 employees across Ireland. I found the automative approach to deeming a cancelled SLA to be an automatic trigger for redundancy to be over simplistic and too radical.

I was not met with a record of contract duration for the remaining respondent grouping of staff.

By November 2022, the complainant has almost 4.5 years unbroken service and the company has acknowledged a fluidity in the marketplace that perhaps a trial of temporary lay off could have been attempted by the parties? I fully accept that I must not place myself into the shoes of the respondent. I merely wish to point out an untravelled but pertinent pathway within the Redundancy Payments Act.

This may at least have offered some breathing space for both parties and in the event that the complainant wished to move on from that status, it would have been open to him to apply for redundancy as opposed to having it imposed upon him. It would also provide the respondent more time to scope out alternatives.

I am encouraged that the Company has since implemented such a policy on Temporary Lay Off, as shared by Ms Manning, in evidence.

I have identified a lack of transparency around the complainant’s selection for redundancy. I am struck by the subjective approach adopted.

I find that the Complainant was not fairly selected for Redundancy on this occasion.

3 Was the dismissal conducted in a fair and reasonable manner and within the band of reasonableness for a reasonable employer?

This is the area where the Respondent has shared an earnest belief that they did all in their power to keep redundancy at bay from the complainant. I also note that an additional financial cushion and retention of the company van to March 2023, was made available to soften that blow.

It was not lost on me that Ms Holmes who clearly diligently worked through the time period of December 2022- March 2023 did not hear an opposing voice from the complainant regarding the option of redundancy. He did not oppose the redundancy during this time and by January 2023 had begun to personalise the impending redundancy.

The Respondent has requested that I take account of the application of the UK case at EAT on Compar Maxam ltd from 1982. It is fair to say that both the UK and Ireland treat redundancy differently.

However, I take the point on the central argument of reasonableness relied on here. Section 6(7) of the Act guides me to this window also.

This case involved giving a direction to early warning of an impending redundancy to Unions, agreeing criteria for exit, objectivity in selection e.g. attendance, efficiency, representations, alternative employments.

This was a case where Unions were partners in a Redundancy Process. In the instant case, this was a solitary redundancy within the complexity of a Triangular employment, where the complainant was cast as his own advocate. He was not represented in the process.

For me and while I have considered Mr Wades submissions in this area, I found a reticence in the complainant’s approach to the consultation process.

It is clear to me that he adopted a watch and wait strategy as evidenced by his taking annual leave in the middle of the consultation.

He spent some of this time seeking to unravel a pay issue and to inquire if the redundancy payment would be enhanced? However, in the main, he was based at home from December 2022 to March 2023 on the respondent books but without work.

There was a lethargy in the complainants’ responses to the respondents’ suggested options for a follow up assignment to Company B. I found that he was not a strong participant in the process he found himself in. I found at hearing that he carried a high level of anger against his contacts at Company B. Perhaps he believed that he would be eased into a new assignment by the respondent as he told me in evidence. However, I could not identify suggestions to aide this from the complainant. 

I return now to the Respondent approach. At hearing, I tried to decipher what currency either party had attributed to the complainants undisputed permanent status?

I found that the complainant did not reflect on this and did not appreciate the currency of a permanent position with the respondent employment.

The Respondent understood that they had an obligation to scope out alternative employment in this case. They did offer some potential employment options, but ultimately these did not work out as the client sites either offered a lower pay or they extinguished their interest when either headcount was not approved, or a mandatory level 8 was not visible in the complainants CV.

By March 2023, the respondent had drawn a blank and moved to a declaration of redundancy for which they did not offer an appeal mechanism.  Bishops island Plant hire applied.

I find that it is one thing to apply Compar Maxam ltd to a union ate workforce, where power and information are more globally spread, but this was a sole employee in a triangular employment relationship who had not been present at the ground floor of the decision making to curtail the SLA.

I have found that once the declaration of cessation of SLA occurred both Ms Holmes and Ms Manning prioritised the Complainant with a consultation period which carried limited options. I have also found that the complainant carried a view that he would be accommodated short of redundancy. The facts here are distinguished from Bishops Island in that regard.

I have found that insufficient regard was paid to the complainant’s permanent status and that the rush to redundancy was too hasty as it did not allow for at a minimum a Lay Off period. This is an option I would expect to see in a reasonable employment situation. This was a very benevolent employment in terms of pay and benefits, inclusive of life cover.

However, I have found that the respondent did not exhaust options short of dismissal when they did not follow the mobility clause present in the contract of employment.

I found that it was open to place the complainant on a lateral transfer through this mobility clause and I found that the Respondent fell short of actioning that lateral transfer when they accepted impediments placed by other clients on a presiding mobility clause in the complainant’s contract of employment.

I found this to be unfair.

I have not found what occurred in this case to be a “sham redundancy “Instead, I found that redundancy, while genuine and mainly resulting from SLA curtailment was arrived at without exhausting all viable options open to the parties and taken together with  the absence of an appeal rendered the dismissal unfair.

I have also found that the complainant was reticent in his own approach for advocating for continuance as he got bogged down in his disquiet with company B in this complicated triangular employment relationship.

I would acknowledge the work of both of the Respondents witnesses in seeking to make the redundancy process as dignified as possible for the Complainant. However, I must return to the shortfalls surrounding the exclusive management of the cessation of the SLA which excluded the complainant. I find that the Respondent owed him a much higher duty of care at that juncture and the omission is stark.

I have found that that the Complainant was unfairly dismissed on a procedural ground.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was unfairly dismissed.  I have given consideration to his table of loss and mitigation and find a shortfall in his efforts to mitigate that loss.

I have decided to award compensation as the sole practical remedy at this time in respect of his actual and prospective financial loss and in relation to his loss of pension rights.

I have taken account of the statutory redundancy payment in addition to the enhanced 5-day payment as background.

I consider it just and equitable that the Respondent should pay the complainant a nett sum of

€17, 831.39 (26 weeks nett pay) in respect of this unfair dismissal.

Claim for Unfair Selection for Redundancy

Complainant

Respondent

Parties

Paul  Atkinson

PFH Technology Group

Representatives

Byron Wade BL instructed by  Healy O'Connor Solicitors

Cara Jane Walsh, BL instructed by Ronan Daly Jermyn,  RDJ LLP

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-00058395-001

21/08/2023

On 21 August 2023, the Complainants Solicitor submitted a complaint under section 8 of the Unfair Dismissals Act, 1977 that the complainant had been subjected to a Sham Redundancy on 24 March 2023 and unfairly dismissed.

The Respondent was notified of the claim one day later. The Respondents Solicitors came on notice on 24 August 2023.

The Claim came to hearing on 24 January 2024.

The Complainants outline submissions were received on 19 January 2024

The Respondent outline submissions were received pre hearing and shared .

Both Parties were legally represented during the case. The Complainant took the affirmation to accompany his evidence, both Ms. Holmes and Ms. Manning, witnesses for the Respondent took the oath to accompany their evidence.

I have agreed to anonymise the client company on application by the respondent at hearing.

During the hearing, and in the absence of any representative from the Client Company, my interest arose in the circumstances surrounding the Service Level Agreement (SLA) referred to in the case.

This was the document which I expected would serve as a foundation document of secondment/ outsourcing between Company A and Company B. I sought sight of that document to assist in my Inquiry.

I was also interested in whether any record of performance appraisal was available to me?

On 31 January 2024, the Respondent confirmed that a written copy of the SLA had not been located and emphasised the relevance of a Purchase Order in its place. This Purchase Order constituted a record of the transacted arrangement which underpinned the complainant’s position in the client company. The Respondent directed me also to both witnesses’ oral evidence on this topic.

Complainant response:

On the next day, February 1, 2024, the Complainant representative objected to the respondents’ efforts to substitute a Purchase order for the requested SLA and opposed the document being accepted in evidence.

Neither side submitted any concrete records of performance appraisal.

The Respondent is an Information and Communications Technology Company with over 700 employees. I will refer to this as Company A.

The Respondent placed the Complainant, an Infrastructure Business Integrator on the site of Company B. The contract of employment was dated 24 April 2018, with a start date of 5 June 2018. The form of acceptance was signed by the Complainant on 30 April 2018. This was his sole work placement with the Respondent.

The Respondent denies that the Complainant was unfairly dismissed.

Ms Walsh BL outlined a background to the events of the case in her outline submission.

During November 2022, The Respondent through Mr A, Services Director, informed the complainant that his role, a standalone position, would cease at the client site B in December 2022. It was anticipated that the complainant would be assigned to another open role with the Respondent.

The process of seeking to match the complainant to another role at Company C commenced immediately. The Complainant was initially hesitant around the retention of the four-day work pattern but indicated that he was happy to be considered for the proposed role at Company C, due to commence in January 2023. However, Company C did not require the additional headcount.

On 19 January 2023, the Respondent informed the complainant that he was at risk of redundancy and continued to scope out the potential for alternative roles for the complainant.

The Complainant remained at home during this period with use of the company van. He availed of annual leave. The Complainant inquired of the potential for an enhanced redundancy package in the eventuality of redundancy.?

On 8 February 2023, the Respondent announced a two-week consultation period with a special emphasis on scoping out opportunities for redeployment within the respondent company. EAP was made available.

By 20 February 2023, the Complainant had missed a link up call on 15 February 2023, and the parties engaged on 20 February 2023, the complainant was placed on one month paid notice of the termination of employment. This period would conclude in redundancy.

“If no internal role at the respondent had been secured by the complainant “

38 open positions were issued for the complainant’s consideration.

21 February 2023    Level 2 Support Engineer role, initially 3-month contract, materialised. Company D

                                     The Respondent offered to forward the Complainants CV, but this was vetoed by him due to diminution of salary.

27 February 2023   Engineer for a full time 12 month rolling contract at Company E  

                                    A separate vacancy made known at company F, CV submitted but no one called to interview.

15 March 2023 The Complainant sought that his CV would be submitted for Company E post.

16 March 2023     Company E were not sure CV suitable for the vacancy.

20 March             Complainant commenced unpaid leave. Company E deemed the CV submitted as unsuitable.

24 March 2023    The Respondent confirmed the Redundancy on the basis that no further roles were available. The Complainant was permitted to retain the company vehicle.

As a gesture of good will, the Respondent paid the complainant pay and pension at the 5-day week rate from 1 January 2023 to 17 March 2023

On the hearing day, Ms Walshe submitted that the dismissal arose from a genuine redundancy which followed the clients ending of the contract. There was no backfill in the position and the Complainant, in his stand-alone role was made aware of the cessation day.

A period of real and substantial consultation followed in an effort to avoid redundancy followed from November 2022 to March 2023. This was underpinned by furnishing CV s to potential alternative postings but was unsuccessful.

The Respondent engaged in an open correspondence with the Complainant throughout and prioritised the situation which followed the contractual end. EAP support was offered.

The Redundancy was genuine and impersonal.

Summary of Ms Carmel Holmes by Oath:

Ms Holmes commenced in role in November 2020 and is head of a 6-person talent acquisition team and has 20 years’ experience in recruitment. She is responsible for head count in the Managed Service Sector, where the core objective is set as staff are hired specifically for assignment.

The Complainant was assigned to Company B through a Service Level Agreement, renewed annually on 31 December. It was not a permanent assignment.

There is no clear contingency when a contract comes to an end and circumstances enter a fluidity around re -hire.

By mid-November 2022, Company B had notified the respondent that they no longer required the employee due to cost reasons.

Company B declared that the post was not being back filled.

Ms Holmes recalled that an alternative role was anticipated for the complainant at Company C and arranged for him to keep the company van a little longer. She submitted that the complainant was not keen to put his name forward and she herself was concerned that US Companies set a required prerequisite for a Level 8 qualification. She also encouraged him to reconsider his reluctance to revert to a 5-day work pattern to aide redeployment.

This was her first encounter with the complainant, who did not make any pronouncements on learning of the job conclusion. He agreed to receiving updates and proceeded on annual leave until January 16, 2023, when the new role was expected to go ahead.

Company C did not proceed to hire as they did not have head count clearance. Further efforts were made to place the complainant.

The Respondent manages to place on average 9 people annually across 4 job titles.

When requested if the Company operated a Policy on redundancy, she deferred to the second witness, Ms Manning.

Ms Holmes engaged in an active exploration of possible placements for the complainant. By 8 February 2023 the complainant had been unsuccessful in finding a replacement role

8 February unsuitable

15 February no attendance

21 February, 3-month role refused by the complainant due to distance.

27 February CV in Company D, but deemed unsuitable, no interview.

The Complainant also refused a potential for placement in a Lab in Dungarvan due to distance.

Ms Holmes provided a snapshot of open roles to the Complainant during February 2023.

Ms Holmes detailed the process surrounding recruitment via a Purchase Order

1 Hiring Manager declares an active recruitment process.

2 Finance approval

3 shared with the respondent

Triggers a search for the position.

By March 10, 2023, Ms Holmes submitted that another Company had expressed need for headcount, but the Complainant had not fed back.

During cross examination,

Ms Holmes confirmed that she had worked as a Recruiter across the US and Irish Pharma Industries.

She confirmed that the position vacated by the complainant had not been back filled and sought to explain the advertisement relied on by the complainant as a “legacy “on a Ads web site and referred to the historical employment of Mr Z, who held the same role as that of the complainant ,( 9 April 2021 to 9 July 2021)  and for which the respondent did not have a permission to advertise . As Mr Z did not attend the hearing, this was submitted as hearsay evidence.

She confirmed that the complainant had refused to increase his hours to 5 days. She was unaware that he had Citrix or management experience prior to December 2022.

She rejected that a move to redundancy was odd with the volume of multi-agency activity at company B. Ms Holmes responded by stating the respondent was not the first call agency.

She confirmed there were no performance concerns regarding the complainant.

She confirmed that she had asked Company B if they needed a back fill.? Ms Holmes rejected Mr Wades contention should have questioned a much broader grouping within company B.

In re direct, Ms Holmes confirmed that she had taken Company B at face value and had endeavoured to source alternative work for the complainant, yet nothing had developed by March 2023

In clarifications, Ms Holmes confirmed that the company had not considered temporary layoff in the complainant’s case and the efforts had been extended to redeploy him to an alternative role.

The cessation of contract was communicated via phone and there were no documents. This prompted me to request sight of the SLA.

The final imprimatur rests with the hiring manager. The Respondent did not operate a performance appraisal system.

The employment ended as there was no alternative job or backfill.

Ms Holmes confirmed that December 31 reflected the annual review of the SLA.

Evidence of Ms Susan Manning, Director of Human Resources, by oath.

Ms Manning has 25 years’ experience as Senior Human Resource Lead a two-year history as Director of Human Resources with the Respondent.

She outlined that she was not normally involved in   the circumstances that led to this case, but she was aware that Company B had decided not to continue with the Complainants’ placement after 31 December 2022 and “we wanted to do our best “She knew that a Senior Manager had placed the complainant on notice of redundancy from mid-December 2022. Ms Mananing confirmed that she had not seen the documents surrounding this decision.

She submitted that redeployment was the first option considered by the respondent.  The role flagged at Company C was a comparable role, where an interview would have been a prerequisite. This option was withdrawn when Company C did not give the go ahead for the hire.

Ms Manning outlined that the Respondent the need to speak with the complainant and during the Teams Call on January 19, 2023, a combination of payment and annual leave was the agreed holding position.

She was not aware of any opportunities on site and agreed that the complainant could retain the company van. He was also offered an outplacement programme.

The Complainant had queried whether the redundancy pay could be increased?

Ms Manning submitted that she had discussed the situation with Mr X, a Senior Manager with the Respondent, as there had not been redundancies before this. The Policy was Statutory Redundancy with 4 weeks’ notice.

Ms Manning issued a letter on February 8, 2023, but did not receive a response.

By February 20, 2023, the Complainant was encouraged to ask questions, but he did not address anything outside of a query regarding his January pay slip.

The Complainant availed of some unpaid leave for one week and remained at home from 16 December 2022.

Ms Manning submitted that the Company had drafted, but not operationalised a Policy on Temporary Layoff from November 2022.

She added that the complainant had not challenged the decision to make him redundant at any time through the grievance procedure.

Ms Manning was clear that there were no performance concerns which involved the complainant. He was not on a performance improvement plan and no disciplinary action had been taken against him by either company A or B.

During cross examination, Ms Manning confirmed that no redundancies occurred in 2022 and the company was proud of that. The company was 30 years in being.

There had been “minimal redundancies “in 2023.

The Client site, company B had not raised any issues around the complainant and the respondent had not detected any issues.

She agreed   that the “whole area was fluid “in terms of placement. Quarterly meetings with the client were not established practice.

Ms Manning replied that if the complainant had been placed on lay off, he would have been recalled but accepted that he was not recalled.

In redirect, Ms Manning confirmed that an annual bonus was paid in January. There is provision for lay off in the new contracts.

The arguments:

Ms Walsh has argued that the dismissal in this case cannot be classified as unfair when consideration is given to the application of Section 6(4) (c) of the Unfair Dismissals Act, 1977.

She submitted that the dismissal arose wholly or mainly from Redundancy, by operation of section 7(2) (b) of the Redundancy Payments Act, 1967, which is the defence in the case. The Complainant was not replaced.

“The manner by which the complainant work was carried out, has now ceased to be carried out at the Respondent client. “ 

In Suretank ltd v Declan Kilmartin UDD 1931, the respondent emphasised that the Labour Court had accepted the defence available to them in Section 6(4) (c) and consequently a claim for unfair dismissal failed.

Ms Walsh contended that the same circumstances had application to the instant case.

The topic of the complainant’s standalone role as Infrastructure Business Engineer placed him outside the concept of a fair selection for redundancy.

The Respondent relied on ADJ 23957 A Complainant v a Financial Technology Company here.

In addressing the reasonableness of the process surrounding Redundancy, Ms Walshe drew from a UK EAT case on the equivalence of Section 6(3) of the 1977 Act.

Williams v Compare Maxam ltd [1982] ICR 156, approved in UK Court of Appeal in Walls Meat Company ltd v Selby [1989] EWCA Civ J0203-8

“ ….. if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee to be dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee for dismissal “

1.       As much warning as possible

2.       Consultation

3.       Employer will seek to establish criteria for selection.

4.       Consideration of representations

5.       Is alternative employment available?

The Respondent reflected that the dismissal on grounds of redundancy was a reasonable and impersonal response to the circumstances where the Service Level Agreement had ceased. As he was the sole post holder, selection did not arise as a measurement tool of the fairness of the dismissal.

The Respondent presided over a full consultation process from mid-November onwards and the complainant’s queries were answered.

The Respondent engaged in repeated attempt to find alternative work within its client base but nothing materialised. The Complainant expressed a disinterest in some of the options he was offered. He was hesitant in making himself available for a more marketable 5-day work pattern. He did not accept CV and interview skills. He retained full use of the company van to 31 March 2023.

 The Complainant was paid a statutory redundancy of € 6,372.00.

The Respondent took issue with the complainant’s evidence of loss and mitigation and in particular the paucity of detail from November – January argued in the event that the dismissal was found to be unfair consideration must be given to the shortfall in the complainant’s evidence of loss and mitigation in addition to the pre-existing payment of statutory redundancy and the good will payment.

The Complainant was employed by the Respondent Company from 5 June 2018 to 24 March 2023. His monthly nett pay stood at €3,407. He was placed to work as a Business Infrastructure Integrator with a client site B.

The Complainant operated on a 4-day week for personal reasons from October 2021, with commensurate reduction in salary to €2, 971.80. nett .

The Complainant identified compensation as his preferred remedy in the event of success in his case. He gave evidence on loss and mitigation, where he had found limited new work on a Project from June -November 2023 and was out of work on the hearing day.

There was a notable paucity of detail on the original August 2023 complaint form.

The background detail was eventually provided by means of an outline submission a week prior to hearing and can be summarised as:

The Complainant case is that he was unfairly dismissed from his position of Business Infrastructure Integrator due to an alleged redundancy which was disguised as a dismissal on 24 March 2023, conveyed by letter issued by Ms Manning, People Director, on 27 March 2023

“On 24 March 2023, following a call with myself, we agreed that there were no further roles for you and your role was made redundant as of that date “

The sum of €6, 372.00 was paid in statutory redundancy.

The employment relationship in this case is triangular and was described by the Complainants representatives as “an open-ended contract of potentially unlimited duration “

The Complainant was hired by the Respondent, a Recruiter and placed for work purposes at a third-party chemical plant. Company B.

He was based at Company B for the duration of employment. The placement there ceased in December 2022 when his contract was not renewed due to “costing too much “and references to his performance. His employment continued until March 2023 when the contested redundancy occurred.

The Complainant representatives argued that the sole redundancy as relied on was not impersonal and instead constituted a “misuse of the redundancy process”.

They contended that the consultation process prior to dismissal was unreasonable and was without alternative options.

On the hearing day, Mr Wade, BL for the Complainant submitted that the redundancy was not genuine. He added that the Respondent had advertised the complainant’s role and an acquaintance of his got the job. This was strongly disputed by the Respondent and addressed in evidence. He stated that the action of redundancy was a breach of loyalty and fidelity and the outcome of a client-imposed decision by company B.

He pointed to the illogical premise of an IT expert being made redundant.

The Complainant was paid by the Respondent and under the Direction and Control of Company B.

It was the Complainant case that references to his work performance in the negative placed the dismissal on a personalised footing, rather than the impersonality demanded in a genuine redundancy.

“… The reason for ending his employ is specific to the man himself rather than his works no longer being needed “

Summary of the Complainants Evidence under Affirmation

The Complainant outlined that he had worked on the client site of company B since his being hired in 2018. He worked there through a combination of 5 day and latterly 4 days until his dismissal due to redundancy in March 2023. It was a hands-on role.

He was expected to attend work during the pandemic, and he did so.

By mid-2021, personal issues arose for the complainant and both he and company B agreed on a 4-day week to permit time with parents.

He had a bereavement in late 2021 and on his return to work, he was requested to return to 5 days, which he refused on compassionate grounds. He interpreted that the 4-day pattern wasn’t welcomed by company B.

He recalled that his relationship with his manager deteriorated from then on. He did not demonstrate an interest in what the complainant was doing and became disconnected, whereas, previously, the relationship had been good.

Projects were pushed to others.

He recalled that as his was a standalone post, nobody else could do that job. He described the depth of the role and stressed it was hands on and not robotic.

In November 2022, a habitual weekly meeting was cancelled. The following week, he learned via Teams that his contract was not being renewed.

There were already two Interns placed at Company B by the respondent and he contended these were a cheaper option for the respondent. He was unaware when these posts commenced or what title they carried.

He was unaware of an appeal of the redundancy.

There was no focus on permanent role.

The complainant gave evidence of loss.

During cross examination, the complainant explained that he did not accept that a genuine redundancy had occurred as it had been a circumstance of deteriorating relationship and disconnect, coupled by a failed attempt to impose a 5-day working pattern.

The Complainant confirmed that he had sought a reason for his redundancy from client B, who replied that it was a financial reason, but he himself suspected that performance was the reason.

The Complainant confirmed that he had worked with Ms Holmes in an ongoing engagement November – March 2023.  This followed the first notification of change by the Respondent Manager in November 2022. He had expected to secure a posting at Company C and didn’t appreciate the importance of the 5-day pattern until January 2023.

He submitted that he heard redundancy option first before alternative roles were discussed.

He accepted that he was notified of EAP, CV skills and Interview skills.

He had indicated that he was prepared “to go anywhere “to the respondent. In addressing the 38 open jobs from 20 February 2023, he explained that wages had halved in one and another did not make an offer. He had hoped that the job opportunity at the Lab would emerge.

He could not recall why he missed the 15 February engagement. He had availed of annual leave but was hopeful of a potential placement.

He understood the goodwill payment to reflect 5 days at the conclusion of his employment.

He confirmed that he had handed over to the Interns when he left employment.

Mr Wade relied on a large body of case law which cautions against employer misuse of a redundancy process for reason for dismissal.

Zeus Packaging Group v O’ Hara UDD 2269. unfair selection for redundancy / lay off.

JVC Europe ltd v Panisi [2011] IEHC 279 Sham Redundancy

Nurendale unltd v Phelan UDD 1826 Sham Redundancy

He contended that the client site had indicated that the complainant was too expensive to retain, yet he was not met by a proposed pay cut. He had previously reduced his hours to a 4-day week.

Mr Wade rejected any inference of poor performance in the complainants outline submission.

In closing remarks, Mr wade contended that the dismissal that occurred in this case was not a genuine but rather a sham redundancy.

The Respondent was party to a contract of employment that provided for mobility. The Complainant was placed on client B site for the duration of employment. He submitted that the dismissal which occurred disguised as a redundancy.

He pointed to a deficit in the respondent’s obligation to advocate for the complainant on the client site, which had not occurred in the case.

The Respondent had not scoped out a fall back or contingency for the complainant. They did not consider the option of lay off. He rejected the retention of the van as “tinsel “in the case.

He maintained that the complainant had mitigated his loss, but he had been unfairly dismissed.

I have been requested to consider the facts as raised in this case and to arrive at a decision on whether this claim for unfair dismissal has succeeded.?

In reaching my decision, I have had full regard for witness oral evidence and all oral and written submissions of the Parties.

As I have referred to in the earlier narrative of this case, this employment comes to this Inquiry as a “Triangular employment” This means that.

1 Company A is the Main employer and the author and custodian of the contract of employment.

2 Company B is an independent company and not a subsidiary of company A, where the Complainant was based.

3 The Complainant possessed a permanent (contract of indefinite duration) with Company A and for the duration of his employment he worked at the Company B site and availed of a Company van provided as part of his employment package from Company A. He was paid by Company A inclusive of pension, bonus and benefits.

It is of note that the opening contract of employment was not revisited post probation. However, both parties are at one on the complainant’s permanent status.

I was unclear as to whether the Respondent acted as an Agent in this instance as defined in Section 13 of the Unfair Dismissal Amendment Act, 1993?

 or whether Company B could be categorised as a “third person “in this case.

I would like to have met a company B representative to help me understand the

“On the ground “reality of the employment relationship.

Mr Wade made reference to understanding that the Respondent was acting as an Agent, with commensurate responsibilities, however, there is nothing before me through submissions at hearing or through CRO search to identify the Respondent as an Employment Agency.

13. Employment Agencies

Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement—

(a) the individual shall be deemed to be an employee employed by the third person under a contract of employment,

(b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

(c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.

To the contrary, the Contract of employment from 2018 recognises the respondent as the Employer who paid the wages, benefits, pension and covered the provision of the company van.

The Respondent has not disputed that they are in fact the correct employer in this case.

Triangular employments, by their very nature are complicated and require careful assessment of the parameters of that employment.

I note the Labour Court decision in AA Recruitment Ireland ltd v Cotter UDD 12/2021, where the Court held that the Agency was the employer in the case and not “the third person “

I have found that the Respondent is the Employer in accordance with Section 1 of the Unfair Dismissals Act, 1977.

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), shall be deemed to be employed by the local authority;

I can proceed to consider the facts of the case as presented by both parties.

The Complainant in this case has claimed that he was an unwilling party to a “sham redundancy “in March 2023 and that his resultant dismissal was unfair causing him to experience an unanticipated “drought “in his employment and financial loss.

The Respondent , on whom the burden of proof rests in this case , in accordance with Section 6(1) of the Unfair Dismissals Act, 1977 has denied that the dismissal amounted to a sham redundancy and maintained  instead that the redundancy was the substantial and  genuine reason for dismissal ,which arose when Company B decided not to extend the Service Level Agreement , which underpinned the Complainants job on the site of Company B .

They added that the respondent behaved reasonably in arriving at the redundancy option following a period of consultation and having had exhausted all alternative options. The Respondent also added a financial cushion to the statutory redundancy payment through a recognition for payment purposes of a five-day week in the closing stages of the employment alongside retention of the company van when the complainant was no longer based on the client site.

The Respondent has relied on Section 6(4) (c) of the Act as their defence in the claim and has submitted that circumstances of dismissal resulting wholly or mainly from Redundancy prevail.

In reaching my decision in this case, I propose to address the facts through the following prism.

1 Was there a genuine redundancy?

2 Was the method of selection fair?

3 Was the dismissal conducted in a fair and reasonable manner and within the band of reasonableness for a reasonable employer?

Was this a genuine redundancy? Did the dismissal arise wholly or mainly from Redundancy.?

Section 7(2) of the Redundancy Payments Act, 1967 defines the circumstances of Redundancy in five scenarios.

2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, 

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

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

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

St Ledger v Frontline Distributors Ireland Ltd UD 56/1994 (reported at [1995] E.L.R. 160 at 161-162)

Placed a firm emphasis on redundancy being impersonal and change related.

The Respondent has relied on the provisions of Section 7(2) (b) as their rationale for the instant redundancy.

Nobody who presented at hearing seemed to have been an active participant in either the construction of the first Service Level Agreement in 2018 or its reported demise in November 2022.I have been troubled by this lack of transparency. I have reflected on the respondents Ms Holmes when she recalled that cessation of the SLA was communicated by phone. I have also reflected on the complainant’s evidence when he confirmed that he learned of his cessation in his role during November 2022. He took some notes of his conversation with the client B Manager and formed the opinion that he was in fact being managed out due to his reduced hours for family reasons.

The complainant did not formalise those views into a directed grievance to either company A or B.

As I am compelled to look below the bonnet in all dismissals linked to redundancy, the parties will appreciate that it would have helped me enormously to understand the Service Level Agreement as it traversed in time the probationary period, the period of contract of indefinite duration and its cessation in December 2022 , which has now  led to this case.

I cannot accept the Purchase Order presented post hearing by the Respondent as it is not probative.

Instead, I have considered the invitation issued by the Respondent to the Complainant to join the Company in April 2018. The Complainant accepted a permanent position, based in Company B, with a mobility clause at the company’s discretion.

For me, this created a firm bond between the parties and a defined duty of care.

The Complainant was open in his evidence that he had handed over to two preexisting Respondent placed Interns on leaving.

I accept Ms Holmes evidence that the complainant was not replaced by the Respondent. In Ms Holmes, I found a very committed Manager. However, as the respondent was one of many staff providers, I cannot be certain, outside of hearing directly from the Client B team, that the complainant was not replaced in his role. I accept that he was not replaced by Company A.

The Respondent has relied on section 7(2) (b) as the reason for dismissal.

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, 

In this case, the Respondent has not opened the headcount at the respondent company for assessment. The Complainant was the sole person made redundant during 2022 with minimal redundancies during 2023. I have not established a proven diminishment in the respondent cadre of staff.

 In the Labour court case of Bishops Island Plant hire and Groundworks ltd and Martina Collins Condon UDD 2327, Deputy Chairman, Alan Haugh pointed to a vacuum of accounts or financial statements from the respondent to support the evidence of diminished administrative staff at the plant.

I would have much preferred to have seen a record of the cessation of SLA in November 2022. I have not had the benefit of oral evidence from the decision makers which led to the announcement of cessation.

However, I accept Ms Holmes evidence that the Respondent was not required to send the Complainant to Company B from the cessation of the SLA on 13 December 2022. That was the nett effect for the company.

I have found that the antecedent event which has caused me most concern in this case is the circumstances surrounding the cessation of the SLA. I accept that there is no performance appraisal that might point to animus, JVC Europe Ltd and Panisi [2011] IEHC, 279.I have identified that the Complainant received a €2,000 bonus payment in early 2023 from the Respondent.

The news of cessation broke in November 2022, and this predated the typical renewal date of 13 December annually.

I accept the Complainants own evidence that he had pressing family commitments which led to his reliance on a four-day week and his resistance to its reversal at Client B site. However, while I accept that the complainant held a strong viewpoint that his reduced hours made him vulnerable on client B site, he did not test that theory through the grievance procedure at any time in his employment. For me, he has not proved that “nexus “to his dismissal through redundancy.

I have identified that by the time of the circumstances surrounding his cessation of employment, the complainant was in active contact with his Legal Advisors. It may have been mutually beneficial for the parties to have engaged in a grievance at that point. I am struck by Ms Holmes evidence when she commented that the complainant did not make any pronouncements on the cessation of the SLA. she said that she was not met with a resistance.

Notwithstanding that the Respondent continued to place two Interns in the area where the Complainant worked , I accept that the Respondent was notified of a cessation in the complainants SLA in November 2022 and this propelled the respondent into a next step contingency plan of accommodating the complainant “ in house “ at Client A site assignments .

I would have preferred to have seen real time records of this cessation to aide transparency and minimise a “ second guessing for reasons for  cessation “ I find that  an in excess of four year static employment record deserved a  much better communication that what occurred here and I would strongly encourage the respondent to include a seconded employee in real time records of inter party communication going forward .

I find that the Respondent can rely on Section 7(2) (B) of the Redundancy Payments Act, 1967 as the reason for dismissal. I find that the Complainant was the subject of a declared diminished need for his grade on the site of Client B, when the Respondent was not required to provide head count in this role from November 2022. This caused the climate of redundancy at the Respondent employment. I have identified   a significant shortfall in best practice surrounding the communication and recording of this development by both companies. I would have expected more in large scale companies.

I accept that the complainant’s dismissal arose mainly but not wholly from this redundancy.

2 Was the method of selection fair?

The respondent submitted that the complainant was a stand-alone position and as such not subject to the exigencies on selection normally witnessed in assessing selection for redundancy.

I noted that the Respondent did not have a policy on redundancy and made reference to a latter-day policy on “Lay Off “from November 2022, which was not actioned in this case.

In Redmond on Dismissal Law at Chapter 21, 21.34

Des Ryan BL points to the distinction between redundancy applying to jobs and selection to people. Selection must be on objective grounds.

Section 6(3) of the Act does not come into play here as the Respondent did not have an agreed exit policy e.g. LIFO (last in first out) There was no Trade Union Agreement on redundancies, voluntary or involuntary.

There were no grounds applicable from section 6(2) of the Act.

Instead, the Respondent has relied on the complainant’s role on a client site not being renewed as the basis to selecting him for redundancy.

That was the sole consideration.

Mr Wade has contended that the Respondent stopped short of fairness in selection when they accepted the Client B decision without query.

This is more a matter for the third part of the test.

The Respondent has guided me to the Labour Court case of Declan Kilmartin. However, on a careful reading of that case, the topic of unfair selection for redundancy was not argued, as it has been in the instant case. The Court accepted the respondent defence.

The Respondent has argued that the company B declaration on the non-renewal of role placed the respondent without contingency and into the fluidity and uncertainties of the marketplace.

In the seminal case of

JVC Europe Ltd and Panisi [2011] IEHC, 279 

Charleton made some very incisive observations on the impact of the change that redundancy brings to a worker.

In that case redundancy was found to be “a cloak “for dismissal as relied on by the complainant in this case. The redundancy was found to be constructed as a consequence of poor relationships (animus) rather than a cause for dismissal.

Charleton J set the scene for the objectivity needed in an assessment of the facts, where unfair selection for redundancy is claimed when he remarked.

A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended, the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law, and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer.

The Respondent has acknowledged that they employ over 700 employees across Ireland. I found the automative approach to deeming a cancelled SLA to be an automatic trigger for redundancy to be over simplistic and too radical.

I was not met with a record of contract duration for the remaining respondent grouping of staff.

By November 2022, the complainant has almost 4.5 years unbroken service and the company has acknowledged a fluidity in the marketplace that perhaps a trial of temporary lay off could have been attempted by the parties? I fully accept that I must not place myself into the shoes of the respondent. I merely wish to point out an untravelled but pertinent pathway within the Redundancy Payments Act.

This may at least have offered some breathing space for both parties and in the event that the complainant wished to move on from that status, it would have been open to him to apply for redundancy as opposed to having it imposed upon him. It would also provide the respondent more time to scope out alternatives.

I am encouraged that the Company has since implemented such a policy on Temporary Lay Off, as shared by Ms Manning, in evidence.

I have identified a lack of transparency around the complainant’s selection for redundancy. I am struck by the subjective approach adopted.

I find that the Complainant was not fairly selected for Redundancy on this occasion.

3 Was the dismissal conducted in a fair and reasonable manner and within the band of reasonableness for a reasonable employer?

This is the area where the Respondent has shared an earnest belief that they did all in their power to keep redundancy at bay from the complainant. I also note that an additional financial cushion and retention of the company van to March 2023, was made available to soften that blow.

It was not lost on me that Ms Holmes who clearly diligently worked through the time period of December 2022- March 2023 did not hear an opposing voice from the complainant regarding the option of redundancy. He did not oppose the redundancy during this time and by January 2023 had begun to personalise the impending redundancy.

The Respondent has requested that I take account of the application of the UK case at EAT on Compar Maxam ltd from 1982. It is fair to say that both the UK and Ireland treat redundancy differently.

However, I take the point on the central argument of reasonableness relied on here. Section 6(7) of the Act guides me to this window also.

This case involved giving a direction to early warning of an impending redundancy to Unions, agreeing criteria for exit, objectivity in selection e.g. attendance, efficiency, representations, alternative employments.

This was a case where Unions were partners in a Redundancy Process. In the instant case, this was a solitary redundancy within the complexity of a Triangular employment, where the complainant was cast as his own advocate. He was not represented in the process.

For me and while I have considered Mr Wades submissions in this area, I found a reticence in the complainant’s approach to the consultation process.

It is clear to me that he adopted a watch and wait strategy as evidenced by his taking annual leave in the middle of the consultation.

He spent some of this time seeking to unravel a pay issue and to inquire if the redundancy payment would be enhanced? However, in the main, he was based at home from December 2022 to March 2023 on the respondent books but without work.

There was a lethargy in the complainants’ responses to the respondents’ suggested options for a follow up assignment to Company B. I found that he was not a strong participant in the process he found himself in. I found at hearing that he carried a high level of anger against his contacts at Company B. Perhaps he believed that he would be eased into a new assignment by the respondent as he told me in evidence. However, I could not identify suggestions to aide this from the complainant. 

I return now to the Respondent approach. At hearing, I tried to decipher what currency either party had attributed to the complainants undisputed permanent status?

I found that the complainant did not reflect on this and did not appreciate the currency of a permanent position with the respondent employment.

The Respondent understood that they had an obligation to scope out alternative employment in this case. They did offer some potential employment options, but ultimately these did not work out as the client sites either offered a lower pay or they extinguished their interest when either headcount was not approved, or a mandatory level 8 was not visible in the complainants CV.

By March 2023, the respondent had drawn a blank and moved to a declaration of redundancy for which they did not offer an appeal mechanism.  Bishops island Plant hire applied.

I find that it is one thing to apply Compar Maxam ltd to a union ate workforce, where power and information are more globally spread, but this was a sole employee in a triangular employment relationship who had not been present at the ground floor of the decision making to curtail the SLA.

I have found that once the declaration of cessation of SLA occurred both Ms Holmes and Ms Manning prioritised the Complainant with a consultation period which carried limited options. I have also found that the complainant carried a view that he would be accommodated short of redundancy. The facts here are distinguished from Bishops Island in that regard.

I have found that insufficient regard was paid to the complainant’s permanent status and that the rush to redundancy was too hasty as it did not allow for at a minimum a Lay Off period. This is an option I would expect to see in a reasonable employment situation. This was a very benevolent employment in terms of pay and benefits, inclusive of life cover.

However, I have found that the respondent did not exhaust options short of dismissal when they did not follow the mobility clause present in the contract of employment.

I found that it was open to place the complainant on a lateral transfer through this mobility clause and I found that the Respondent fell short of actioning that lateral transfer when they accepted impediments placed by other clients on a presiding mobility clause in the complainant’s contract of employment.

I found this to be unfair.

I have not found what occurred in this case to be a “sham redundancy “Instead, I found that redundancy, while genuine and mainly resulting from SLA curtailment was arrived at without exhausting all viable options open to the parties and taken together with  the absence of an appeal rendered the dismissal unfair.

I have also found that the complainant was reticent in his own approach for advocating for continuance as he got bogged down in his disquiet with company B in this complicated triangular employment relationship.

I would acknowledge the work of both of the Respondents witnesses in seeking to make the redundancy process as dignified as possible for the Complainant. However, I must return to the shortfalls surrounding the exclusive management of the cessation of the SLA which excluded the complainant. I find that the Respondent owed him a much higher duty of care at that juncture and the omission is stark.

I have found that that the Complainant was unfairly dismissed on a procedural ground.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was unfairly dismissed.  I have given consideration to his table of loss and mitigation and find a shortfall in his efforts to mitigate that loss.

I have decided to award compensation as the sole practical remedy at this time in respect of his actual and prospective financial loss and in relation to his loss of pension rights.

I have taken account of the statutory redundancy payment in addition to the enhanced 5-day payment as background.

I consider it just and equitable that the Respondent should pay the complainant a nett sum of

€17, 831.39 (26 weeks nett pay) in respect of this unfair dismissal.

Claim for Unfair Selection for Redundancy