Complainant

Respondent

Parties

Sinead  Behan

Irish Studio Media Publishing Limited

Representatives

Setanta Solicitors

Christopher Bedor Corporate Counsel for the Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059796-001

03/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00059796-002

03/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00059796-003

03/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00059796-004

03/11/2023

The complainant submitted four complaints to the WRC on 3/11/2023.

The complainant withdrew complaints numbered CA-00059796-002, CA-00059796-003.

The complainant contends that she was unfairly dismissed contrary to the provisions of the Unfair Dismissals Act, 1977. The complainant further submits that the respondent failed to pay her redundancy entitlements contrary to the provisions of the Redundancy Payments Act, 1967.

The complainant commenced employment with the respondent in 2003 and was employed as Publishing Director for the respondent’s publications until her dismissal on the 7/9/2023.

 Her gross monthly salary was €4166.67

CA-00059796-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The adjudicator accepted the complainant’s solicitor’s objections to the admissibility of witness statements submitted by the respondent as none of the reported authors of the said statements were in attendance to verify the authenticity of the statements, aside altogether from the relevance of the witness statements.

The complainant submits that she was unfairly dismissed. The process of selecting her for redundancy was unfair.

Since December 2021, the complainant had been employed as a publishing director for the respondent’s magazines and bookazines with responsibility for the day-to-day leadership and management of Irish Studio Print portfolio, including contribution to strategic sessions and for overall business planning. Prior to that date, she had held other roles within the company.

 In January 2022 a new CEO was appointed. She was previously the editorial director

The complainant submits that it was not a genuine redundancy.  She was made redundant because she submitted a grievance against the CEO. The process was abandoned by the respondent in the spring of 2023.

She was the only person selected. The respondent failed to draw up any matrix for selection.

Evidence of complainant given under affirmation.

On 11/7/2023, she was called to what was called a consultation meeting on 12/7/2023. She was not provided with any selection matrix.

Prior to this, in 2021, she was offered one job on Irish Central Box to sell 2 products which included the British Heritage publication at the same salary. This, in contrast to her role as a publishing director, was more of a sales role. She was not offered any roles in 2023 in the context of redundancy discussions.

She received no notice period.

Cross examination of witness by respondent corporate counsel

The complainant in reply to a question as to whether she had a job description for publications and bookazines stated that that was the job description which she had held.

She stated that the CEO was not her direct report but a Mr Jacobsen, a co – chairman up until 2022.

In the context of the grievance which the complainant lodged in September 2022 against the respondent CEO, and when asked why she would not report to the CEO as required, she stated that Mr Bedor would need to ask Mr Jacobsen that question. She declined to give evidence on reporting relationships.

She confirmed that the British Heritage publication shut down in 2022.

She confirmed that she then became responsible for one publication and that she held a place on the management team.

Regarding the profitability of Ireland of the Welcomes magazine, she understood from the financial controller that they were ahead of budget on that publication.

She was unable to confirm if she reported to Mr.  Jacobsen for the entirety of 2022. She was unable to recall when the previous CEO left. She declined to explain why she would not report to the current CEO – particularly in circumstances where Mr Jacobsen had resigned in 2022 and became a consultant at that point. She maintained that the last time that she reported to him was in the summer of 2023.

She confirmed that she had held about ten roles over the course of her employment in the company.

In response to a question as to how the loss of publications could give rise to an unfair dismissal, the complainant stated that the dismissal was unfair because irrespective of the fact that two of the three publications had been sold off, the redundancy was driven by the fact she had submitted a complaint about the CEO. That was the essential reason for her dismissal.

She referred to medical certificates submitted during 2022-2023 due to work related stress. This was because she had raised a grievance and it was ignored,

She stated that she did not approach the CEO directly about her grievance.

She confirmed that she oversaw two publications. One of them, British Heritage, was sold off in 2022. When Ireland of the Welcomes ceased publication seven months later, she was unsure if the cessation was permanent.

When questioned, she stated that she was unaware if these publications were underperforming nor was she aware if the number of subscribers were dwindling or if revenue was going down; subscriptions fluctuated.

She could not answer how many subscribers were on the books in 2021 or 2022 or decreases in same. She stated that the financial controller told her that she was on budget, and she saw all revenue coming in.

She objected to the question as to why she had no supporting evidence to reveal that subscriptions were not declining.

She declined to answer the question as to why / how print publications – for which she had responsibility - could continue publication if revenue was declining.

Redundancy process.

The complainant stated that she declined to reply to the letter which the respondent issued to her on 12 July because she believed that the decision to make her redundant was irreversible

She confirmed that she retained the laptop given to her in 2020

The complainant confirmed that she received a letter from the chairman of the company on 28/9/2023, looking for account details into which her statutory redundancy could be paid and looking for client contact details, client account details and enquiries concerning Ireland of the Welcomes publication and she responded to this email. She did not answer the query as to why she, as opposed to the company, should determine which information was necessary.

As to the question as to whether her role was redundant, the complainant declined to accept that it was, stating that she was told it was redundant and that is why she put it on the complaint form to the WRC

She accepted that the subscribership to two publications decreased over time. She could not recall if there was an increase in subscribers for Ireland of The Welcomes in the years 2021-23

Regarding her knowledge of sales, she confirmed that she did engage with other parties about invoices.  She could not explain why invoices were sometimes not paid.

She could not recall if other redundancies occurred in the period 2019-2023. She recalls that sone titles were sold to the Business Post and that some staff may have been made redundant. She did not know if staff had been transferred or had been made redundant. It was not her business.

Legal arguments

Regarding the alleged financial fragility of the company, triggering the need for redundancies, the complainant’s solicitor stated that documentation to support same was not attested to by its author, but merely submitted in documentary form. The CRO shows a different picture, it does not show a financial disadvantage.

The complainant relies on Production Line Lead v Employer, ADJ -00024721, where notwithstanding the existence of a genuine redundancy, the complaint of Unfair Dismissal was upheld. The Adjudication Officer held that such consultation meetings as the respondent had engaged in with the complainant did not constitute real and substantial consultation. The Adjudication Officer also referred to the fact that the complainant was provided with a list of available posts in the company, but they were all posts for which he did not hold the relevant qualifications. The Adjudication Officer concluded that:

“The consultation process engaged in was not real or substantial and there was no

genuine attempt to identify suitable alternative posts for the complainant. I find that

the complainant was unfairly dismissed because he was unfairly selected for

redundancy.”

 The complainant argues that in the instant case no genuine attempt had been made in this case to identify alternative posts.

The complainant also relies on White v Yenom Ltd [UD/993/2009], where the Employment Appeals Tribunal stated that:

“In cases of redundancy, best practice is to carry out a genuine consultation process

prior to reaching a decision as to redundancy. While in some cases there may be no

viable alternative to the making of one or more jobs redundant, whatever consultation

process is carried out, the employer who fails to carry out a consultation process risks

being found in breach of the Unfair Dismissals Act as such a lack of procedure may

lead to the conclusion that an unfair selection for redundancy had taken place.”

In Trinity College v Mr. Iftikhar Ahmad [UDD 2030] the Labour Court remarked that

while a redundancy situation had been held, “sufficient efforts were not made to seek

alternative roles”,

and as a result, the Complainant was held to have been unfairly dismissed.

The complainant further relies on Students' Union Commercial Services Ltd v Alan Traynor [UDD 1726]. There the Labour Court held that:

“The Court was presented with no information to demonstrate that the Respondent

carried out a thorough exercise to consider alternative options/ suggestions. The Court

can accept that had such an exercise been carried out it may not have identified any

alternative positions suitable to the Complainant; however, it seems clear that no such

exercise was engaged in. On that basis the Court finds that the approach adopted by

the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a)

of the Act, the dismissal of the Complainant was unfair.”

 The complainant was not provided with any alternatives to redundancy.

Loss

The complaint was on a salary of € 4,166.67 per month up until 7/9/2023.

Mitigation of Loss

She took up a new role on 12/2/2024. Her new salary is €5,000 per month.

From the date of her termination, the complainant registered with recruitment agencies. She applied for approximately 30 positions

CA-00059796-004.Complaint under Section 39 of the Redundancy Payments Act, 1967

The respondent told her that she would be paid her redundancy entitlements, but the respondent failed to make the payments to her.

The complaint’s almost entire focus in presenting her complaint was on her belief that she had been unfairly dismissed and selected, needlessly, for redundancy due to the fact that she had lodged a grievance against the CEO.

Without prejudice to her contention that it was an unfair dismissal, should the adjudicator agree with the respondent’s contention that her termination did not amount to an unfair dismissal and was due to a genuine redundancy, she was only paid €8333 out of an estimated sum of €25,320 payable to her under the Redundancy payments Act, 1967.

The respondent told her that she would be paid her redundancy entitlements, but the respondent failed to make the payments to her.

CA-00059796-001.  Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent corporate counsel, Mr Bedor, stated that the dismissal was not contested.

The respondent chairman would demonstrate that the complainant’s role had become redundant before her termination day.

Evidence of company chairman given under affirmation.

The company had 395 employees in 2019, whereas they now employ 3-4 personnel.

 The company through its five publications connected the Irish diaspora with Ireland.  The complainant’s job was subscription manager for these five publications.

These print publications suffered a significant decline with the attendant loss of advertising revenue. The company sustained losses of €211,115 by 31/12/2022 due to a downturn in business. The respondent disposed of three of its five publications in 2019 and reduced the number of employees as a consequence. A fourth publication shut down in 2022 and a fifth one in 2023, Ireland of the Welcomes publication.

The complainant’s role was overseeing print subscriptions.

The complainant’s role was no longer needed. The respondent made multiple alternative offers which the complainant declined.

 They offered her a role in another website publication, Irish Central, and yet a further offer of a position as a commercial director in another publication was made to her in early 2022. They offered her a full-time position in a software company to manage their subscriber needs. Concerning alternative offers, the then co chairman offered her 2 alternative viable positions n 2021. Her Years of service drove the efforts to find alternative roles.

The new CEO took over in March 2022, and contrary to the complainant’s assertion that her redundancy was attributable to her difficulties with the CEO, which were evident in 2022, the respondent did not let her go, notwithstanding that a further publication, British Heritage, shut down in 2022.

The witness offered the complainant a redundancy package in July 2023. The company had sustained €200,000 in losses.

The witness stated that their corporate counsel had advised that the complainant should have a consultation period but that her role would expire in September.

The witness stated that the consultation process offered to the complainant allowed her to request further information.

The witness stated that the complainant had confirmed to him that she understood that her dismissal was due to redundancy. On 21 July 2023, the respondent advised the complainant that as they had not heard back from her on foot of consultation embarked upon on 12/7/23, they intended to conclude the consultation process and terminate her employment.

After this confirmation, the complainant had no further contact with the witness.

The respondent asked her for handover details, the company laptop, and passwords. She declined to give these.

She was not replaced. Two to three other marketing staff members were made redundant.

Contrary to Mr Lander’s assertion, the company accounts, audited externally, are a true and accurate reflection. A genuine redundancy had arisen.

Cross examination of the witness.

The witness could not confirm if either he or the CEO on the 20/11/2023 signed the company accounts submitted to the Companies Registration Office.

The witness confirmed that the CEO provided him with information on the financial health of the company. The CEO was aware of his thinking about making the complainant redundant. The witness disputed the assertion that the company was not in difficulty. They were a for profit company.

He confirmed that they had reduced their losses due to redundancies within the company

To the question as to why the lossmaking dimension of the business was not disclosed to the complainant, the witness stated that she was well aware of the company’s losses.

To the question as to why the respondent’s submission was top heavy with information about the conflictual relationship between the complainant and the CEO, the witness stated that they were responding to a complaint of unfair dismissal, and they had wished to resolve the complainant’s complaints which had been focussed on her difficulties with the CEO.

Concerning the company’s request to the complainant to supply information to 3 colleagues upon leaving, and in circumstances where the respondent states the job no longer existed, this was a handover. The respondent had a fiduciary duty to close off all matters and these staff members had to pick up on residual matters.

The witness stated that the complainant’s remaining tasks were reassigned to existing employees.

There was no selection matrix as it was a stand -alone job. Print publications for which the complainant had responsibility had ceased. No new roles were offered in 2023.

Closing submission.

The respondent’s counsel stated that the evidence fails to show that an unfair process was employed in the selection of the complainant for redundancy.

The argument that there should be a matrix and consultation is too narrow a view to hold in the context of what was facing the company.

From 2021 onwards, the complainant was told by Mr Jacobsen, then co – chairman, that her role was at risk.

The respondent states that the complainant’s ignorance of the dwindling numbers of subscribers is problematic and not credible. Multiple job offers were made to her during 2021- 22.

Regarding the alleged disparity between the CRO and the respondent’s evidence, both can be true at the same time.

The assertion that the company was / is financially healthy is a misstatement of fact.

Losses exceed €200,0000.

CA-CA-00059796-004 Complaint under Section 39 of the Redundancy Payments Act, 1967

The respondent chairman in cross examination was unable to confirm that the complainant’s redundancy monies had been paid in full. They had wanted to pay the redundancy money in instalments.

The respondent wrote to the complainant asking for her bank account details on 26/10/23. Prior to this, the respondent had paid three instalments of the redundancy monies. She failed to supply her bank details to the respondent. Nor did he write a cheque

The respondent still intends to pay the complaint the outstanding redundancy monies.

CA-00059796-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977 

I have been asked to accept that the dismissal of this complainant contravenes the provisions of the Unfair Dismissals Act, 1977 and is not a mere redundancy as advanced by the respondent.

Relevant Law.

Legislation involved and the obligations on the parties.

Section 6 of the Unfair Dismissals Act 1977 puts the burden of proof on the Respondent faced with a complaint of an unfair dismissal.

6.(1) states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) expands on the meaning of substantial grounds and states:

6(4) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following”:

(a) n/a.

(b) n/a

(c) the redundancy of the employee”.

The onus is placed on the respondent to justify the dismissal and where the respondent seeks to rely on the redundancy defence, the respondent must prove

that the dismissal resulted wholly or mainly from that redundancy situation and

that the employee made redundant was fairly selected.

The definition of redundancy in is set out in the Redundancy Payments Act 1967 -2016.

Section 7(2) of the Redundancy Payments Act 1967provides that

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

(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) N/A.

(e) N/A. “    

Was it a genuine redundancy?

The complainant’s role was formally identified for redundancy in July 2023.

The complainant occupied the stand-alone position role of publishing director for the respondent’s magazines and bookazines. Primarily this role entails responsibility for print subscriptions and circulation of the five publications.

In 2019 the respondent sold three of its titles, leaving it with two surviving titles. A fourth publication, British Heritage Travel, ceased printing in March 2022. The bookazine project also shut down at the end of summer 2022. It is not contested that the number of publications for which the complainant was responsible shrank from five titles to one by 4/8/20022. A fifth publication, Ireland of the Welcomes, stopped printing in May 2023. By this date the print portfolio had effectively ceased.

With the loss of all publications, it is clear then that the work for which the complainant had been employed had diminished as envisaged by section 7(2) (b) of the Redundancy Payments Act 1967. Discussions on a voluntary redundancy package for the complainant had run into the sand in early 2023. They were terminated.

The back story of a conflictual relationship between the complainant and the CEO, a relationship which prompted the complainant to submit a complaint under the grievance policy, a relationship also characterised by the failure of the complainant to recognise the authority of her line manager does not upend nor supplant the incontrovertible evidence that there was a diminished to non- existent requirement to retain her in the role of publishing director.

Based on the law and the uncontested evidence, I find that the complainant’s employment was terminated as a result of redundancy.

Selection process for redundancy.

Requirement for consultation in selection of employees for redundancy.

In Mulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), the tribunal stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

The Labour Court in Component Distributors (CD Ireland) Ltd -v- Brigid (Beatrice) Burns UDD1854, accepted that:

“the Respondent was entitled to restructure its business and reduce its workforce if necessary”.

The Court went on to state that:

“…While the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.”

The Court found in that instance that the complaint had been afforded full consultation.

In Jeffers v DDC Ireland Ltd. UD 169/2000, the EAT held that where a person was being made redundant, there was an onus on the employer

“(i) to take reasonable steps to seek alternative employment within the company for the employee being made redundant, (ii) to know what positions, if any, are available on the relevant date, and (iii) to offer any such reasonable alternative positions to the employee whose position is becoming redundant.”

The consultation with that complainant was inadequate and for this reason the decision to make her redundant was held to be an unfair dismissal.

In 2021, the complainant was offered one job on Irish Central Box to sell 2 products.

 The respondent in the instant case did refer to offers of alternative employment put to the complainant in an informal manner in 2021-22, at a point in time when only one publication had survived, and in advance of any redundancy proposals being put to her. She was offered Head of Digital. She declined the roles offered to her. But the respondent stated that she was either unqualified or inexperienced for these roles. These or other offers were not made in the context of formal redundancy discussions, nor was the complainant on notice at that time in 2022 that the alternative to declining these options was redundancy.  None of these offers or any other offer was put to the complainant in July 2023.  

In July 2023, the invitation to the complainant to discuss her at risk position when the respondent was making her position redundant did offer her the opportunity to put forward alternatives to redundancy.

Reasonableness of employer’s conduct.

Notwithstanding the existence of a genuine redundancy, section 6.7 of the Act of 1977 ( as amended) permits the adjudicator to have regard to the  conduct of the employer in deciding if a dismissal is unfair. This obligation to behave reasonably towards an employee facing termination due to a redundancy also arises even where there is no agreed selection procedure for redundancy in place.

By July 2023, the respondent had decided on a redundancy. The complainant was given one day’s notice of a meeting to discuss her at risk position. The respondent did offer her the opportunity to put forward alternatives to redundancy. But the respondent supplied no evidence to demonstrate that they had explored or examined any alternatives in July 2023 when the complainant was facing a certain redundancy or in the preceding weeks, or that this option was live or viable, unlike 2022 when only 1 publication was in circulation.

She was not offered the option of bringing a representative or another colleague to this meeting scheduled for the next day.

She did not respond to the respondent’s follow up letter, a day later, as she believed that the redundancy was a foregone conclusion. The respondent’s evidence on the meeting of the 12/7/23 was that it was a consultation meeting.

The respondent’s counsel stated that the argument that there should be a matrix and consultation with the complainant about alternatives is too narrow a view to hold given what was facing the company.

In Tracey Ring v Student Facilities & Services (UCC) Designated Activity Company (DAC) T/A Unisalon, ADJ-00037197, the adjudicator held that

“a lawful redundancy process requires the genuine consideration of suitable alternative employment within the organisation, including any suggestions the employee brings to the table. It requires the employee to be afforded a right of appeal.”

I find that the consultation process was not far off a tick box exercise, meagre, initiated at short notice, called without offering the complainant the option of being accompanied, devoid of an exploration of any real alternatives and described in evidence by the respondent as an opportunity for the complainant to ask questions, but without any reference to alternatives to redundancy.

The complainant was not offered the right of appeal.

Section 6.7 of the Act (as amended) allows the adjudicator in determining if a dismissal is unfair to have regard

“ to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”

I find that the failure to offer the complainant the option of representation, the at best half-hearted exercise in consultation, and the failure to offer the complainant the right to appeal, lead me to conclude that the employer’s conduct was unreasonable, and that the dismissal was procedurally unfair.

Based on the authorities and the evidence, I find, therefore, that the complainant was unfairly dismissed.

I find this complaint to be well founded.

Redress.

The complainant has secured alternative employment and has identified compensation as her preferred form of redress.

Loss.

The complainant was on a salary of € 4,166.67 per month. She applied for approximately 30 positions in the period September to January 2024.  She took up a new role on 12 February 2024. Her loss for the period 7 September 2023- 11 February 2024 is €21,631. However, she received €8332 as a partial redundancy payment.

I require the respondent to pay the complainant the sum of €12,000 as a sum that is fair and equitable in all of the circumstances.

CA--00059796-004. Complaint under Section 39 of the Redundancy Payments Act, 1967.

The complainant has already disputed that it was genuine redundancy, submitting, instead that it was an unfair dismissal.

The respondent states that it was a genuine redundancy.

The uncontested evidence is that the respondent paid only €8000 of the sum estimated to be payable to the complainant (approximately€25332,) in the event of a complaint under this Act of 1967 being upheld.

The matter of making awards under the Redundancy Payments Acts 1967- 2016, where that complaint is based on the same set of circumstances grounding a complaint made under the Unfair Dismissals Acts 1977-2015 was addressed in A Van Sales Driver v A Bakery, ADJ -00006787.

The adjudicator noted that

“the EAT in Cusack v Dejay Alarms Ltd (UD1159 /2004 held that compensation may not be awarded twice on the grounds that an employee was dismissed by reason for redundancy and for unfair dismissal. This was also reinforced by Ní Dhomhnaill v Jambo Sana Ltd (UD 1114/2012) which found that dismissal to be unfair such that the employee was awarded loss of earnings for the six months but also the equivalent sum for statutory redundancy.

The complaint under the Redundancy Payments Act in Ní Dhomhnaill v Jambo Sana Ltd (UD 1114/2012) was dismissed.

I do not find this complaint to be well founded.

.

CA-00059796-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €12,000.

CA-00059796-004. Complaint under Section 39 of the Redundancy Payments Act, 1967.

I do not find this complaint to be well founded.

Dual complaints under the Redundancy Payments Act,1967 and the Unfair Dismissals Act 1977.