Complainant

Respondent

Parties

Mark  Langham

JMK Group

Complainant

Respondent

Anonymised Parties

Representatives

Rachel McGovern, B.L., instructed by Crushell & Co Solicitors

Nicola Murphy, Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

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

CA-00058233-001

11/08/2023

The Complainant commenced employment with the Respondent on 16/05/2022.  He was appointed to the role of “Head of Operations Ireland” and was paid a gross salary of €160,000.  His employment was terminated on 16/06/2023 when he was dismissed by reason of redundancy.  The Complainant had one year and one month’s service at the date of his dismissal.  He submitted his complaint to the Workplace Relations Commission (WRC) on 11/08/2023.

The Respondent is a hotel owner and operator.  They operate four hotels throughout  the Republic of Ireland, The Holiday Inn at Dublin Airport, The Holiday Inn Express in Dublin City Centre, The Hampton by Hilton in Dublin City Centre and the Waterford Marina Hotel.  The Respondent also operates coffee shops alongside some of these hotels.  The Respondent reviewed senior management roles in 2023 and decided that the role of Head of Operations in Ireland appeared surplus to requirements at that time and along with other trading considerations the viability of the role of Head of Operations was reviewed.  The Complainant was informed on 29/05/2025 that his role was at risk and that the Respondent’s policy of “last in first out” would be the criteria used. A number of meetings were held and the decision was made that the role would be made redundant with effect from 16/06/2025.  The Respondent submits that they hired an external HR company to carry out the procedures to ensure that this was impartial.  The Complainant appealed the decision and this decision was upheld on appeal.

Ms Sonia Kajani gave evidence on affirmation on behalf of the Respondent.  She confirmed that she is a director of the JMK Group.  Ms Kajani confirmed that the Organisational Structure which was included in the Respondent’s submission is what was in place when the Complainant worked for them. This is a small family-owned group based in the UK and Ireland.   The  CEO and Founder, Mr John Kajani, is her father and Mr Zain Kajani is a fellow director and her brother.  There is a third Director Ms Mawash Kajani. 

Ms Kajani confirmed that the UK and Ireland are separate operations.  She was the director to whom the Complainant reported to.  The Respondent has a head office in the UK and an executive team. Ms Kajani confirmed that the Complainant was paid by Skyline View Limited which is an Irish company and part of the JMK Group. The Head of Operations Role in Ireland was responsible for managing the operational department in the Irish region and he had the general managers reporting to him.  There is a similar role in the UK and the person has been in that role for 9 years.

Ms Kajani confirmed that there is a distinction between the UK and Irish operations as both have different financial considerations.  Ms Kajani gave evidence in relation to how the decision to make the Complainant’s role as Head of Operations redundant was made.  The Respondent is a small family business and interest rates were rising along with the increasing cost of running the business.  There were also changing needs in the business and they needed to make changes and so this role was made redundant.  Ms Kajani confirmed that the Complainant was a good worker.  Ms Kajani gave evidence in relation to the consultation process.  This was done internally with the assistance of an external HR Consultancy company.  Ms Kajani confirmed that in previous years two roles were made redundant.  Ms Kajani was asked what criteria were used and she confirmed that the criteria of “Last In First Out” was used and as the Complainant was the last person employed it was decided that his role would be made redundant.

Ms Kajani gave evidence that the business case outlines the rationale which led to the redundancy of the Complainant’s role.  This looked at the trading positions of the various hotels and the hotel near Dublin airport was now contracted for direct provision and therefore required less operational needs.  There are General Managers in the other hotels which are performing well.  The Complainant’s salary was €160,000 and as the business now had less operational needs this was a consideration along with outsourcing housekeeping and a refinancing of the business assets.  Ms Kajani stated that two other roles which were filled, the Coffee Shop Manager and the Sales and Marketing Manager.  The Coffee Shop Manager was done as a cluster of shops as it was cheaper while the Sales and Marketing Manager is a specialist role and an essential one for the business. 

Ms Kajani confirmed that the decision to make the Complainant’s role was made by herself, the other directors and the CEO of the company.  Ms Kajani confirmed that the Respondent’s redundancy procedure which is outlined in the Staff Handbook was adhered to.  Ms Kajani confirmed that there is no pension scheme in operation.  Ms Kajani also confirmed that there were no bonus payments given and the Complainant never raised a grievance in relation to this.

Cross Examination:  Ms Sonia Kajani:

Ms Kajani was cross examined by Ms McGovern, B.L., on behalf of the Complainant.  It was put to Ms Kajani that there was a discrepancy in her evidence in relation to the reason for making the Complainant’s role redundant.  She stated that this was a cost saving measure and later stated that it was the criteria of last in first out.  Ms Kajani stated that they had to look at the overall situation.  It was put to Ms Kajani that she gave evidence that the UK and Ireland were separate operations.  She stated that as they are a small company there would be some link and the business in Ireland had changed in recent years.  It was also put to Ms Kajani that the Complainant had made some major savings while employed.  She confirmed that he had worked on the outsourcing of the housekeeping and the change this model had on the business.  Ms Kajani also confirmed that the Complainant worked on the contract for the hotel involved in the direct provisions and that this was worth €20 million - €23 million to the business.  It was also put to Ms Kajani that the Complainant’s budget was well ahead of its target. Ms Kajani stated that she did not have figures to hand.  It was also put to Ms Kajani that while the Complainant’s role was being made redundant another senior role was recruited and filled.  She was asked when this person (Mr A) started and Ms Kajani said that she could not remember.  It was put to Ms Kajani that this was in July 2022.  Ms Kajani said that this role was a Senior Development Manager role and was mainly a construction role.

It was put to Ms Kajani that despite her evidence that that cost savings were necessary the business had plans to build three more hotels.  Ms Kajani stated that one had not yet started and the other two were started two years after the Complainant’s role was made redundant. Ms Kajani was asked to clarify the role of the Head of Operations in the UK and she confirmed that this person is responsible for three hotels, group insurance and head office matters.  She confirmed that it could be described as a hybrid role in that the person was responsible for operations and other tasks. Ms Kajani was asked how many “keys”  [i.e. rooms] this person was responsible for and she said that it was 280 along with responsibility for commercial and residential portfolio.  The Complainant’s role which was the same in Ireland was responsible for 1000 keys including direct provision.  She agreed that the Complainant was responsible for more than his UK counterpart.  It was put to Ms Kajani that bonus payments were provided for at the discretion of senior management and she confirmed that was correct.  It was put to Ms Kajani that the Complainant’s evidence would be that General Managers reporting to him received bonus payments.  Ms Kajani said that she was not aware of this.  Ms Kajani said that she would accept that there was a bonus structure in place.

Ms Kajani was asked when it became apparent to the Respondent that a member of staff would have to be let go.  She stated that they were looking at the overall costs and this was about six months before the Complainant was made redundant.

Ms Kajani was asked if she, as the person in charge of the Complainant, had any conversations about his performance review.  She confirmed that they had chats but she did not give him any impression that redundancy was being considered for his role.

Redirection – Ms Sonia Kajani:

Under redirection Ms Kajani was asked if the role which was made redundant was filled and she confirmed that it was not.

Closing submission:

In a closing submission on behalf of the Respondent Ms Murphy stated that the evidence adduced was that this was a genuine redundancy.  The Respondent had engaged the services of a third party to ensure that the process was done favourably.

The Complainant had preconceived ideas about redundancy based on his previous experience of being involved in a redundancy situation.  The role remains vacant.

Ms Murphy noted that the case law is very clear, if the dismissal is wholly or mainly arising from a redundancy situation then this is not an unfair redundancy.  The Respondent has shown that redundancy was applicable to the Complainant’s role.  Ms Murphy noted that the case of Hindle v Percival Boats ([1969] 1 WRL 174) in which Lord Denning M.R. noted that “the Tribunal should not be concerned with the motives or beliefs of the employers – in this case that the employee was too slow – but rather the reason for redundancy”.   Ms Murphy also referred to the case of JVC Europe Ltd v Panisi ([2012] ELR 70) where Charlton J emphasised the impersonality of redundancy and contrasted it with unfair dismissal:  “…. 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”.

It was also submitted on behalf of the Respondent that consideration must be given to the Complainant’s attempts to mitigate his loss and the case of Sheehan v Continental Administration Co Ltd UD858/199 where it was held that:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

It is the Respondent’s position that they deny that the Complainant was unfairly dismissed or dismissed for any reason other than a valid redundancy.

The Complainant commenced employment with the Respondent on 16/05/2022.  His employment was terminated on 16/06/2023.  He was employed as Head of Operations Ireland and was paid a salary of €160,000.  The Complainant gave evidence on affirmation. In his role the Complainant was responsible for managing the hotel portfolio and coffee shops in Ireland.  This involved overseeing four General Managers, Group Director of Sales and Marketing for the UK and Ireland, a Group Commercial Manager for the UK and Ireland and a cluster coffee shop manager. The Complainant gave evidence that he was also involved in various meetings associated with the new hotels which the Respondent was bringing into the group. In this role he was responsible for 940 hotel rooms and the business had a turnover of approximately €50.5 million.  The Complainant explained that of this €23 million was from direct provision and he was asked to renegotiate this contract with the relevant Government agency.  As this deal was previously conducted through a third party the Complainant explained that he managed with this without third party assistance and closed the deal at Christmas 2023 and substantially increased the value of this contract.

The Complainant gave evidence that there were a number of new hotels under construction.  He was invited on to all calls in relation to this.  He stated that he was involved with the design teams which used his experience in relation to customer flows, staff flows and other associated matters linked to the efficient workings of an hotel.  The Complainant confirmed that Mr A started work around July 2022.  The Complainant also confirmed that there were a number of other employees who started after him.  There was a Finance Director for UK and Ireland appointed and a coffee shop manager.

The Complainant confirmed that it was accepted that a bonus scheme was in place and his offer of employment included the payment of a bonus.  He outlined that he was asked to “move on” a senior person in the organisation and it was established that there was a Bonus Scheme and he was asked to negotiate this with this employee.  This happened in December 2022.

The Complainant gave evidence that in January 2023 the company was doing very well.  The end of year targets were exceeded and signed off.  The budgets for the coming year were also signed off.  The Complainant confirmed that the company was in a healthy financial position.  At this time the Respondent also purchased a property in central Dublin which would be rebuilt as a hotel.  The Respondent also purchased land in Galway for the purpose of building a hotel.  There were also plans to open a hotel in Cork and one in Belfast.

The Complainant noted that Ms Kajani gave evidence about the concerns of state of the company finances which began in November 2022. He was aware that the company was doing well and during the monthly reviews this was confirmed.  All the hotels were performing well and there was no mention of the need to implement money saving measures.  The Complainant also gave evidence that the Sales and Marketing role was filled along with some other sales positions.  The Complainant gave evidence that in May 2023 a new office was built at Dublin Airport.  He overheard a conversation which indicated to him that the Respondent was looking at a way to remove him.  The Complainant confirmed that the first time he was told about this was at the “at risk” meeting on 30/05/2025.  This meeting was attended by the Respondent’s Group HR Manager (who is no longer working for the Respondent) and a representative from a company called Graphite HR.  This meeting took place in the Holiday Inn located in O’Connell Street, Dublin.  The Complainant gave evidence that he was told the company needed to save some money and that his role was at risk.  He asked if there was a business case for this but he was not given this at the meeting.  The Complainant also stated that he asked what steps the Respondent was taking to protect his role but he did not receive an answer.  The Complainant also confirmed that his question about a recruitment freeze also went unanswered.

The Complainant gave evidence that he received the minutes of this meeting and a copy of the business case but he was not given the proposed revised structure.  There was a second meeting on 08/06/2023 and he challenged several points in the business case such as the areas of revenue he had helped stimulate and the other ways he was looking to increase additional revenue and drive the growth of the business.  The Complainant  felt that these concerns were met “with weak responses”.  There was no discussion about other General Manager roles or other senior managers who were being recruited.  He was sent a copy of the minutes and an invite to another meeting.  There was a further meeting on 15/06/2023 and the Complainant outlined that he challenged fundamental aspects of the business case.  There was a concern about rising interest rates in the UK but this had no impact on the business in Ireland.  The Complainant stated that he was well informed about the financial state due to his working relationship with the Regional Financial Controller for Ireland.  The Complainant gave evidence that a further meeting was then arranged for 20/06/2023.  However, later that day he received an email from the Group Director of HR informing him that his contract would be terminated immediately due to redundancy.  His email account was blocked.  On 20/06/2023 the Complainant asked the Group Director of HR why his email was blocked and if the meeting scheduled for that day would proceed.  He was instructed to drop off his equipment at the main office.  The Complainant also confirmed that when he asked about his bonus and pension as per the offer letter he was told that these would not be honoured by the owners of the business.

The Complainant stated in evidence that he was sick to receive this confirmation.  He felt that he had done a good job and he felt completely victimised as he had relocated from London to take up this role.  The Complainant stated that it was always important to him how you treated someone.  He confirmed that the redundancy was confirmed  before the fourth meeting which was scheduled for  20/06/2023 was held.

The Complainant lodged an appeal against the decision to terminate his employment by reason of redundancy.  This took place on 29/06/2023 and was heard by the Finance Director UK and Ireland.  A representative from Graphite HR was also present.  The outcome was that the decision was upheld and this was confirmed to him on 05/07/2023.

The Complainant gave evidence that after this he moved to Belfast and began looking for work.  He approached various recruiters for the industry in the first instance and then sent his CV to the various hotel portals who are responsible for recruitment.  He also got professional assistance in formulating his CV.  The Complainant stated that a role like his is difficult to find and he looked at the possibility of relocating to the Middle East if a vacancy arose.  He was successful in obtaining a General Manager role in Scotland and while this was confirmed in November 2023 his start date was 01/01/2024.  The Complainant confirmed that his salary in this role is €119,189 which is €40,411 less than in his role with the Respondent.

Cross examination -  The Complainant:

The Complainant was cross examined by Ms Murphy on behalf of the Respondent.  It was put to the Complainant that in his evidence he stated that a Mr A was recruited to a senior role and he was asked if he thought he should be given this role.  The Complainant stated that Mr A had a construction remit and this was not his skill.  The Complainant was asked if he could have taken up a Finance role in Ireland or the UK and he confirmed that he could not.

The Complainant was asked what his perception of redundancy was.  He confirmed that it would usually be a last resort.  Redundancy has a significant impact on the individual.  The Complainant stated that one should look at all other areas before an individual is targeted.  The Complainant confirmed that the minutes of the “At Risk” meeting of 29/05/2023 were accurate. He stated that on this occasion there should not be a perception of a “done deal”.  There should be an opportunity to look at other ways and give the individual an opportunity to defend his position.  He noted that there was no business case presented to him at this meeting.

It was put to the Complainant that he asked questions at this meeting.  He confirmed that he did but his points were not answered.  There were contradictory responses provided.  The Complainant was asked if he was invited to put forward proposals and he confirmed that he was.  He stated that the Respondent recruited a General Manager and as the redundancy process had commenced before this was done he could have been asked to take on this role.  He had a lot of previous experience as a General Manager in the hotel business.   The Complainant also stated that he was working on a number of other things such a streamlined procurement process and a consolidation of suppliers.   This was not part of his role and he also had commenced the process of having telephone masts placed on their buildings as a means of generating revenue.  The Complainant was asked if it was fair to say that saving money and making money were important to the business.  He confirmed that this was important in every business and indeed it was part of his role.

In relation to this new employment the Complainant was asked how many roles he applied for.  He confirmed that he had applied for 11 single site General Manager roles.  The Complainant was asked to outline the time he spent each week seeking employment.  He stated that he spent quite a bit of time each week looking for work.  He had no money coming in, lived alone and he was very active seeking work.  Many hotels now use AI on their portals to screen CV’s and he obtained professional assistance to ensure his CV would be appropriately pitched.  The Complainant also stated that he was in touch with various recruiters and as there would be a limited number of similar roles in Ireland he broadened his search to include the UK, Dubai and Hong Kong.  The Complainant was asked when he stated his new role and he confirmed that it was 01/01/2024 and was based in Scotland.  He confirmed that he interviewed for this role in November 2023.

In response to a question from the Adjudication Officer, the Complainant stated that he felt that the reason his role was selected for redundancy was because of personality clash with a Director.  This occurred around Christmas and he noted that from that time their relationship was strained.  His holiday requests were ignored and the tone of the emails he received had changed.  The Complainant was also asked by the Adjudication Officer how he felt that his role could be saved.  He stated that they decided they did not want him in the business and that was it.

Closing submission:

In a closing submission by Ms McGovern, B.L., on behalf of the Complainant she stated that the Respondent states that there was a genuine redundancy situation and that the Last in First Out criteria was applied. However, Ms Kajani’s evidence was very clear – the reason was cost saving.

The narrative of the Respondent that costs were rising in November 2023 is in stark contrast with the evidence of the Complainant about the expansion plans the Respondent had for Ireland.

The Complainant did raise questions about the fairness of the appeal process and the discrepancies in the business case.  The need for financial cuts while at the same time maintaining an ongoing recruitment for various positions is one such example.

The Complainant’s written submission also provides details of various legal authorities to support their view that where a redundancy is not impersonal it will result in an unfair, or perhaps wrongful dismissal.

CA-00058233-001:  This is a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  In circumstances where the fact of dismissal is not in issue, the evidential burden of proof (or the onus) rests with the Respondent to establish it has acted fairly and appropriately. Section 6(1) of the Unfair Dismissals Act 1977:

 “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”

The Act suggests circumstances which might be relied on by an Employer to establish the Dismissal was not Unfair.  Section 6(4) of the Unfair Dismissals Act 1977 reads:

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

(a) The Capability, Competence or Qualifications of the employee for performing work of the kind for which he was employed by the employer to do;

(b) The conduct of the employee,

(c) the redundancy of the employee, and

(d)….”

Section 6(6) of the 1977 Act  in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in Section 6(4) of the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

An Adjudication Officer should, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 6 (7) of the Unfair Dismissal Act of 1977).

In the case before me, the Respondent seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act).  In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or a ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967 the Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade or proposes trading with fewer employees or that the work is to be done differently and that the Employee has not the requisite training or qualification to continue.

Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable, and that the selection process is fair and transparent.  The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.

Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement, or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be considered when calculating the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).

The Respondent’s evidence was that their policy of “Last-In-First-Out” (LIFO) was the applicable criteria when the Complainant’s role was selected for redundancy.   The Respondent confirmed that in recent years they had made about two or three roles redundant.  The Respondent’s Employee Handbook, Ireland 2023 outlines its redundancy procedure:

“Should circumstances arise where redundancy is seen to be a possibility the company will ensure it complies with relevant legislation and look where possible to:

Ø  Reduce overtime to a workable minimum; and

Ø  Investigate measures, such as short-time working, reduced working week and/or lay off (without pay), as a means of avoiding  redundancies.

If redundancies cannot be avoided, consideration may be given to applications for voluntary redundancy, where appropriate.  It may not be possible to accept every application for voluntary redundancies depending on the requirements of the business.  If the selection of employees for redundancy becomes necessary, any criteria for selection will be discussed with you at the time where possible.  At all times, the overriding consideration will be the future viability of the business and we reserve the right to deviate from this policy where deemed necessary”.

The Respondent gave evidence that a number of trading situations arose which led the Respondent to review the role of the Head of Operations.  The evidence adduced was that this commenced in or around November 2022.  It is difficult to reconcile how this role was specifically selected for review at that time as it would have been less than six months since the Complainant took up the role.  There was no documentary evidence provided to the hearing in relation to this.

If the Respondent was responding to challenging trading situations it did not provide evidence that would rationally explain how they had been working on major expansion plans across the Irish part of the business.  This included the buying of other properties and land with a view to establishing about four other hotels.  The Respondent gave evidence that they had restructured their financing model in a more favourable manner and at the same time they cite the forecast from Euribor (Euro Interest Offered Rate) as part of their rationale for making the role of Head of Operations Redundant.  There was evidence adduced that one of their hotels, the Holiday Inn, Dublin Airport was contracted to provide services for direct provision to the State and this was renewed.  The Complainant gave evidence that he played a significant role in renegotiating a renewal of this €23 million contract and implemented additional revenue generating plans as part of this.  It is implausible that a business would then decide that the Complainant’s role was a burden on the business given his input to this and other aspects of the role.  The hearing heard evidence that the turnover was in the region of €52 million and the Complainant’s salary would have accounted for approximately 0.30% of this.

The Complainant gave evidence that the business case which was declared as the rationale behind the decision was not given to him as the “at risk” meeting.  The Complainant had to request this and the proposed revised structure.  The Complainant took issue with many aspects of this business case but these were not resolved.  One notable feature was that the Respondent continued to progress its recruitment schedule despite the need for financial restraint.  The Complainant made a significant point in that the Irish portfolio was ahead of budget and there was no rationale for the need for cost-saving measures.  The Respondent made no effort to engage with the Complainant in relation to cost-saving measures despite his obvious competence and accomplishments since taking on the role. 

The Respondent submits that they engaged the services of an external HR consultancy firm to ensure impartiality in relation to procedures.  There was no evidence that this firm had any input into the rationale and was engaged to guide the Respondent in relation to “any procedures attaching to any possible redundancies”.  The Complainant was the only employee who was made redundant.

In considering the evidence I find that there was no evidence adduced to substantiate the assertion that the financial position of the Respondent was such that it would justify the redundancy of the role of Head of Operations.  There was contradictory evidence from the Respondent in relation to the criteria used and the disputed business case.  I also find that there was a lack of genuine dialogue with the Complainant during the “at risk” stage and also  to fully consider the Complainant’s suggestions on possible alternatives.  It is only after all possible alternatives have been exhausted and found to be of no avail and the consultation process can be properly concluded can it then be confirmed that the role is to be selected for redundancy.  It was not disputed that the decision to make the Complainant’s role redundant was confirmed to him by email prior to the final meeting scheduled to discuss this matter. There was also a marked absence of the minutes of any meeting at which the Senior Management team made the decision to make the role redundant. I find that redundancy was used as a cloak in the dismissal of the Complainant and I find that this complaint is well founded.

In the light of this conclusion I find that the dismissal of the Complainant by reason of redundancy was unfair for the purposes of the Acts and the Complainant’s claim is well-founded.  In relation to redress I believe that compensation is the appropriate redress in this case.

The Complainant also confirmed that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. Details of the Complainant’s loss were submitted.  The Complainant gave evidence of the attempts to mitigate his loss in securing alternative employment and these included overseas possibilities.

Redress:

Mitigation of Loss:  Section 7 (2) of the Act deals with compensation and mitigation of loss.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister,

(e) the extent any) of the compliance or failure to comply by the employer, relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal …

(3) In this Section –

“financial loss” in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu or in addition to pay.”

It was submitted on behalf of the Complainant that he was successful in obtaining a position as General Manager on 01/01/2024 and he had to relocate to Scotland.  He is paid a salary equal to €119,589.   It was also submitted on behalf of the Complainant that he is also entitled to recover his losses of €89,230.76 up to finding alternative employment and his continuing loss which equates to €40,411 per year.

Section 7 of the Unfair Dismissals Act, 1977 sets out the limitation of redress:

Section 7(1)(c) allows for compensation of financial loss:

“ (c) payment by the employer to the employee of such compensation (not exceeding in amount of 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The Complainant was dismissed on 16/06/2023 and was paid three months’ notice pay.  His loss up to 01/01/2024 was €60,000 and his ongoing loss is €40,411.  In these circumstances I believe that total compensation of €125,000 is just and equitable having regard to all the circumstances of this case.

CA-00058233-001:  I find that the Complainant was unfairly dismissed by reason of redundancy.  I award the Complainant compensation in the sum of €125,000.

Redundancy.  Selection criteria.

Complainant

Respondent

Parties

Mark  Langham

JMK Group

Representatives

Rachel McGovern, B.L., instructed by Crushell & Co Solicitors

Nicola Murphy, Peninsula Business Services Ireland

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-00058233-001

11/08/2023

The Complainant commenced employment with the Respondent on 16/05/2022.  He was appointed to the role of “Head of Operations Ireland” and was paid a gross salary of €160,000.  His employment was terminated on 16/06/2023 when he was dismissed by reason of redundancy.  The Complainant had one year and one month’s service at the date of his dismissal.  He submitted his complaint to the Workplace Relations Commission (WRC) on 11/08/2023.

The Respondent is a hotel owner and operator.  They operate four hotels throughout  the Republic of Ireland, The Holiday Inn at Dublin Airport, The Holiday Inn Express in Dublin City Centre, The Hampton by Hilton in Dublin City Centre and the Waterford Marina Hotel.  The Respondent also operates coffee shops alongside some of these hotels.  The Respondent reviewed senior management roles in 2023 and decided that the role of Head of Operations in Ireland appeared surplus to requirements at that time and along with other trading considerations the viability of the role of Head of Operations was reviewed.  The Complainant was informed on 29/05/2025 that his role was at risk and that the Respondent’s policy of “last in first out” would be the criteria used. A number of meetings were held and the decision was made that the role would be made redundant with effect from 16/06/2025.  The Respondent submits that they hired an external HR company to carry out the procedures to ensure that this was impartial.  The Complainant appealed the decision and this decision was upheld on appeal.

Ms Sonia Kajani gave evidence on affirmation on behalf of the Respondent.  She confirmed that she is a director of the JMK Group.  Ms Kajani confirmed that the Organisational Structure which was included in the Respondent’s submission is what was in place when the Complainant worked for them. This is a small family-owned group based in the UK and Ireland.   The  CEO and Founder, Mr John Kajani, is her father and Mr Zain Kajani is a fellow director and her brother.  There is a third Director Ms Mawash Kajani. 

Ms Kajani confirmed that the UK and Ireland are separate operations.  She was the director to whom the Complainant reported to.  The Respondent has a head office in the UK and an executive team. Ms Kajani confirmed that the Complainant was paid by Skyline View Limited which is an Irish company and part of the JMK Group. The Head of Operations Role in Ireland was responsible for managing the operational department in the Irish region and he had the general managers reporting to him.  There is a similar role in the UK and the person has been in that role for 9 years.

Ms Kajani confirmed that there is a distinction between the UK and Irish operations as both have different financial considerations.  Ms Kajani gave evidence in relation to how the decision to make the Complainant’s role as Head of Operations redundant was made.  The Respondent is a small family business and interest rates were rising along with the increasing cost of running the business.  There were also changing needs in the business and they needed to make changes and so this role was made redundant.  Ms Kajani confirmed that the Complainant was a good worker.  Ms Kajani gave evidence in relation to the consultation process.  This was done internally with the assistance of an external HR Consultancy company.  Ms Kajani confirmed that in previous years two roles were made redundant.  Ms Kajani was asked what criteria were used and she confirmed that the criteria of “Last In First Out” was used and as the Complainant was the last person employed it was decided that his role would be made redundant.

Ms Kajani gave evidence that the business case outlines the rationale which led to the redundancy of the Complainant’s role.  This looked at the trading positions of the various hotels and the hotel near Dublin airport was now contracted for direct provision and therefore required less operational needs.  There are General Managers in the other hotels which are performing well.  The Complainant’s salary was €160,000 and as the business now had less operational needs this was a consideration along with outsourcing housekeeping and a refinancing of the business assets.  Ms Kajani stated that two other roles which were filled, the Coffee Shop Manager and the Sales and Marketing Manager.  The Coffee Shop Manager was done as a cluster of shops as it was cheaper while the Sales and Marketing Manager is a specialist role and an essential one for the business. 

Ms Kajani confirmed that the decision to make the Complainant’s role was made by herself, the other directors and the CEO of the company.  Ms Kajani confirmed that the Respondent’s redundancy procedure which is outlined in the Staff Handbook was adhered to.  Ms Kajani confirmed that there is no pension scheme in operation.  Ms Kajani also confirmed that there were no bonus payments given and the Complainant never raised a grievance in relation to this.

Cross Examination:  Ms Sonia Kajani:

Ms Kajani was cross examined by Ms McGovern, B.L., on behalf of the Complainant.  It was put to Ms Kajani that there was a discrepancy in her evidence in relation to the reason for making the Complainant’s role redundant.  She stated that this was a cost saving measure and later stated that it was the criteria of last in first out.  Ms Kajani stated that they had to look at the overall situation.  It was put to Ms Kajani that she gave evidence that the UK and Ireland were separate operations.  She stated that as they are a small company there would be some link and the business in Ireland had changed in recent years.  It was also put to Ms Kajani that the Complainant had made some major savings while employed.  She confirmed that he had worked on the outsourcing of the housekeeping and the change this model had on the business.  Ms Kajani also confirmed that the Complainant worked on the contract for the hotel involved in the direct provisions and that this was worth €20 million - €23 million to the business.  It was also put to Ms Kajani that the Complainant’s budget was well ahead of its target. Ms Kajani stated that she did not have figures to hand.  It was also put to Ms Kajani that while the Complainant’s role was being made redundant another senior role was recruited and filled.  She was asked when this person (Mr A) started and Ms Kajani said that she could not remember.  It was put to Ms Kajani that this was in July 2022.  Ms Kajani said that this role was a Senior Development Manager role and was mainly a construction role.

It was put to Ms Kajani that despite her evidence that that cost savings were necessary the business had plans to build three more hotels.  Ms Kajani stated that one had not yet started and the other two were started two years after the Complainant’s role was made redundant. Ms Kajani was asked to clarify the role of the Head of Operations in the UK and she confirmed that this person is responsible for three hotels, group insurance and head office matters.  She confirmed that it could be described as a hybrid role in that the person was responsible for operations and other tasks. Ms Kajani was asked how many “keys”  [i.e. rooms] this person was responsible for and she said that it was 280 along with responsibility for commercial and residential portfolio.  The Complainant’s role which was the same in Ireland was responsible for 1000 keys including direct provision.  She agreed that the Complainant was responsible for more than his UK counterpart.  It was put to Ms Kajani that bonus payments were provided for at the discretion of senior management and she confirmed that was correct.  It was put to Ms Kajani that the Complainant’s evidence would be that General Managers reporting to him received bonus payments.  Ms Kajani said that she was not aware of this.  Ms Kajani said that she would accept that there was a bonus structure in place.

Ms Kajani was asked when it became apparent to the Respondent that a member of staff would have to be let go.  She stated that they were looking at the overall costs and this was about six months before the Complainant was made redundant.

Ms Kajani was asked if she, as the person in charge of the Complainant, had any conversations about his performance review.  She confirmed that they had chats but she did not give him any impression that redundancy was being considered for his role.

Redirection – Ms Sonia Kajani:

Under redirection Ms Kajani was asked if the role which was made redundant was filled and she confirmed that it was not.

Closing submission:

In a closing submission on behalf of the Respondent Ms Murphy stated that the evidence adduced was that this was a genuine redundancy.  The Respondent had engaged the services of a third party to ensure that the process was done favourably.

The Complainant had preconceived ideas about redundancy based on his previous experience of being involved in a redundancy situation.  The role remains vacant.

Ms Murphy noted that the case law is very clear, if the dismissal is wholly or mainly arising from a redundancy situation then this is not an unfair redundancy.  The Respondent has shown that redundancy was applicable to the Complainant’s role.  Ms Murphy noted that the case of Hindle v Percival Boats ([1969] 1 WRL 174) in which Lord Denning M.R. noted that “the Tribunal should not be concerned with the motives or beliefs of the employers – in this case that the employee was too slow – but rather the reason for redundancy”.   Ms Murphy also referred to the case of JVC Europe Ltd v Panisi ([2012] ELR 70) where Charlton J emphasised the impersonality of redundancy and contrasted it with unfair dismissal:  “…. 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”.

It was also submitted on behalf of the Respondent that consideration must be given to the Complainant’s attempts to mitigate his loss and the case of Sheehan v Continental Administration Co Ltd UD858/199 where it was held that:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

It is the Respondent’s position that they deny that the Complainant was unfairly dismissed or dismissed for any reason other than a valid redundancy.

The Complainant commenced employment with the Respondent on 16/05/2022.  His employment was terminated on 16/06/2023.  He was employed as Head of Operations Ireland and was paid a salary of €160,000.  The Complainant gave evidence on affirmation. In his role the Complainant was responsible for managing the hotel portfolio and coffee shops in Ireland.  This involved overseeing four General Managers, Group Director of Sales and Marketing for the UK and Ireland, a Group Commercial Manager for the UK and Ireland and a cluster coffee shop manager. The Complainant gave evidence that he was also involved in various meetings associated with the new hotels which the Respondent was bringing into the group. In this role he was responsible for 940 hotel rooms and the business had a turnover of approximately €50.5 million.  The Complainant explained that of this €23 million was from direct provision and he was asked to renegotiate this contract with the relevant Government agency.  As this deal was previously conducted through a third party the Complainant explained that he managed with this without third party assistance and closed the deal at Christmas 2023 and substantially increased the value of this contract.

The Complainant gave evidence that there were a number of new hotels under construction.  He was invited on to all calls in relation to this.  He stated that he was involved with the design teams which used his experience in relation to customer flows, staff flows and other associated matters linked to the efficient workings of an hotel.  The Complainant confirmed that Mr A started work around July 2022.  The Complainant also confirmed that there were a number of other employees who started after him.  There was a Finance Director for UK and Ireland appointed and a coffee shop manager.

The Complainant confirmed that it was accepted that a bonus scheme was in place and his offer of employment included the payment of a bonus.  He outlined that he was asked to “move on” a senior person in the organisation and it was established that there was a Bonus Scheme and he was asked to negotiate this with this employee.  This happened in December 2022.

The Complainant gave evidence that in January 2023 the company was doing very well.  The end of year targets were exceeded and signed off.  The budgets for the coming year were also signed off.  The Complainant confirmed that the company was in a healthy financial position.  At this time the Respondent also purchased a property in central Dublin which would be rebuilt as a hotel.  The Respondent also purchased land in Galway for the purpose of building a hotel.  There were also plans to open a hotel in Cork and one in Belfast.

The Complainant noted that Ms Kajani gave evidence about the concerns of state of the company finances which began in November 2022. He was aware that the company was doing well and during the monthly reviews this was confirmed.  All the hotels were performing well and there was no mention of the need to implement money saving measures.  The Complainant also gave evidence that the Sales and Marketing role was filled along with some other sales positions.  The Complainant gave evidence that in May 2023 a new office was built at Dublin Airport.  He overheard a conversation which indicated to him that the Respondent was looking at a way to remove him.  The Complainant confirmed that the first time he was told about this was at the “at risk” meeting on 30/05/2025.  This meeting was attended by the Respondent’s Group HR Manager (who is no longer working for the Respondent) and a representative from a company called Graphite HR.  This meeting took place in the Holiday Inn located in O’Connell Street, Dublin.  The Complainant gave evidence that he was told the company needed to save some money and that his role was at risk.  He asked if there was a business case for this but he was not given this at the meeting.  The Complainant also stated that he asked what steps the Respondent was taking to protect his role but he did not receive an answer.  The Complainant also confirmed that his question about a recruitment freeze also went unanswered.

The Complainant gave evidence that he received the minutes of this meeting and a copy of the business case but he was not given the proposed revised structure.  There was a second meeting on 08/06/2023 and he challenged several points in the business case such as the areas of revenue he had helped stimulate and the other ways he was looking to increase additional revenue and drive the growth of the business.  The Complainant  felt that these concerns were met “with weak responses”.  There was no discussion about other General Manager roles or other senior managers who were being recruited.  He was sent a copy of the minutes and an invite to another meeting.  There was a further meeting on 15/06/2023 and the Complainant outlined that he challenged fundamental aspects of the business case.  There was a concern about rising interest rates in the UK but this had no impact on the business in Ireland.  The Complainant stated that he was well informed about the financial state due to his working relationship with the Regional Financial Controller for Ireland.  The Complainant gave evidence that a further meeting was then arranged for 20/06/2023.  However, later that day he received an email from the Group Director of HR informing him that his contract would be terminated immediately due to redundancy.  His email account was blocked.  On 20/06/2023 the Complainant asked the Group Director of HR why his email was blocked and if the meeting scheduled for that day would proceed.  He was instructed to drop off his equipment at the main office.  The Complainant also confirmed that when he asked about his bonus and pension as per the offer letter he was told that these would not be honoured by the owners of the business.

The Complainant stated in evidence that he was sick to receive this confirmation.  He felt that he had done a good job and he felt completely victimised as he had relocated from London to take up this role.  The Complainant stated that it was always important to him how you treated someone.  He confirmed that the redundancy was confirmed  before the fourth meeting which was scheduled for  20/06/2023 was held.

The Complainant lodged an appeal against the decision to terminate his employment by reason of redundancy.  This took place on 29/06/2023 and was heard by the Finance Director UK and Ireland.  A representative from Graphite HR was also present.  The outcome was that the decision was upheld and this was confirmed to him on 05/07/2023.

The Complainant gave evidence that after this he moved to Belfast and began looking for work.  He approached various recruiters for the industry in the first instance and then sent his CV to the various hotel portals who are responsible for recruitment.  He also got professional assistance in formulating his CV.  The Complainant stated that a role like his is difficult to find and he looked at the possibility of relocating to the Middle East if a vacancy arose.  He was successful in obtaining a General Manager role in Scotland and while this was confirmed in November 2023 his start date was 01/01/2024.  The Complainant confirmed that his salary in this role is €119,189 which is €40,411 less than in his role with the Respondent.

Cross examination -  The Complainant:

The Complainant was cross examined by Ms Murphy on behalf of the Respondent.  It was put to the Complainant that in his evidence he stated that a Mr A was recruited to a senior role and he was asked if he thought he should be given this role.  The Complainant stated that Mr A had a construction remit and this was not his skill.  The Complainant was asked if he could have taken up a Finance role in Ireland or the UK and he confirmed that he could not.

The Complainant was asked what his perception of redundancy was.  He confirmed that it would usually be a last resort.  Redundancy has a significant impact on the individual.  The Complainant stated that one should look at all other areas before an individual is targeted.  The Complainant confirmed that the minutes of the “At Risk” meeting of 29/05/2023 were accurate. He stated that on this occasion there should not be a perception of a “done deal”.  There should be an opportunity to look at other ways and give the individual an opportunity to defend his position.  He noted that there was no business case presented to him at this meeting.

It was put to the Complainant that he asked questions at this meeting.  He confirmed that he did but his points were not answered.  There were contradictory responses provided.  The Complainant was asked if he was invited to put forward proposals and he confirmed that he was.  He stated that the Respondent recruited a General Manager and as the redundancy process had commenced before this was done he could have been asked to take on this role.  He had a lot of previous experience as a General Manager in the hotel business.   The Complainant also stated that he was working on a number of other things such a streamlined procurement process and a consolidation of suppliers.   This was not part of his role and he also had commenced the process of having telephone masts placed on their buildings as a means of generating revenue.  The Complainant was asked if it was fair to say that saving money and making money were important to the business.  He confirmed that this was important in every business and indeed it was part of his role.

In relation to this new employment the Complainant was asked how many roles he applied for.  He confirmed that he had applied for 11 single site General Manager roles.  The Complainant was asked to outline the time he spent each week seeking employment.  He stated that he spent quite a bit of time each week looking for work.  He had no money coming in, lived alone and he was very active seeking work.  Many hotels now use AI on their portals to screen CV’s and he obtained professional assistance to ensure his CV would be appropriately pitched.  The Complainant also stated that he was in touch with various recruiters and as there would be a limited number of similar roles in Ireland he broadened his search to include the UK, Dubai and Hong Kong.  The Complainant was asked when he stated his new role and he confirmed that it was 01/01/2024 and was based in Scotland.  He confirmed that he interviewed for this role in November 2023.

In response to a question from the Adjudication Officer, the Complainant stated that he felt that the reason his role was selected for redundancy was because of personality clash with a Director.  This occurred around Christmas and he noted that from that time their relationship was strained.  His holiday requests were ignored and the tone of the emails he received had changed.  The Complainant was also asked by the Adjudication Officer how he felt that his role could be saved.  He stated that they decided they did not want him in the business and that was it.

Closing submission:

In a closing submission by Ms McGovern, B.L., on behalf of the Complainant she stated that the Respondent states that there was a genuine redundancy situation and that the Last in First Out criteria was applied. However, Ms Kajani’s evidence was very clear – the reason was cost saving.

The narrative of the Respondent that costs were rising in November 2023 is in stark contrast with the evidence of the Complainant about the expansion plans the Respondent had for Ireland.

The Complainant did raise questions about the fairness of the appeal process and the discrepancies in the business case.  The need for financial cuts while at the same time maintaining an ongoing recruitment for various positions is one such example.

The Complainant’s written submission also provides details of various legal authorities to support their view that where a redundancy is not impersonal it will result in an unfair, or perhaps wrongful dismissal.

CA-00047192:  This is a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  In circumstances where the fact of dismissal is not in issue, the evidential burden of proof (or the onus) rests with the Respondent to establish it has acted fairly and appropriately. Section 6(1) of the Unfair Dismissals Act 1977:

 “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”

The Act suggests circumstances which might be relied on by an Employer to establish the Dismissal was not Unfair.  Section 6(4) of the Unfair Dismissals Act 1977 reads:

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

(a) The Capability, Competence or Qualifications of the employee for performing work of the kind for which he was employed by the employer to do;

(b) The conduct of the employee,

(c) the redundancy of the employee, and

(d)….”

Section 6(6) of the 1977 Act  in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in Section 6(4) of the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

An Adjudication Officer should, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 6 (7) of the Unfair Dismissal Act of 1977).

In the case before me, the Respondent seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act).  In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or a ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967 the Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade or proposes trading with fewer employees or that the work is to be done differently and that the Employee has not the requisite training or qualification to continue.

Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable, and that the selection process is fair and transparent.  The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.

Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement, or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be considered when calculating the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).

The Respondent’s evidence was that their policy of “Last-In-First-Out” (LIFO) was the applicable criteria when the Complainant’s role was selected for redundancy.   The Respondent confirmed that in recent years they had made about two or three roles redundant.  The Respondent’s Employee Handbook, Ireland 2023 outlines its redundancy procedure:

“Should circumstances arise where redundancy is seen to be a possibility the company will ensure it complies with relevant legislation and look where possible to:

Ø  Reduce overtime to a workable minimum; and

Ø  Investigate measures, such as short-time working, reduced working week and/or lay off (without pay), as a means of avoiding  redundancies.

If redundancies cannot be avoided, consideration may be given to applications for voluntary redundancy, where appropriate.  It may not be possible to accept every application for voluntary redundancies depending on the requirements of the business.  If the selection of employees for redundancy becomes necessary, any criteria for selection will be discussed with you at the time where possible.  At all times, the overriding consideration will be the future viability of the business and we reserve the right to deviate from this policy where deemed necessary”.

The Respondent gave evidence that a number of trading situations arose which led the Respondent to review the role of the Head of Operations.  The evidence adduced was that this commenced in or around November 2022.  It is difficult to reconcile how this role was specifically selected for review at that time as it would have been less than six months since the Complainant took up the role.  There was no documentary evidence provided to the hearing in relation to this.

If the Respondent was responding to challenging trading situations it did not provide evidence that would rationally explain how they had been working on major expansion plans across the Irish part of the business.  This included the buying of other properties and land with a view to establishing about four other hotels.  The Respondent gave evidence that they had restructured their financing model in a more favourable manner and at the same time they cite the forecast from Euribor (Euro Interest Offered Rate) as part of their rationale for making the role of Head of Operations Redundant.  There was evidence adduced that one of their hotels, the Holiday Inn, Dublin Airport was contracted to provide services for direct provision to the State and this was renewed.  The Complainant gave evidence that he played a significant role in renegotiating a renewal of this €23 million contract and implemented additional revenue generating plans as part of this.  It is implausible that a business would then decide that the Complainant’s role was a burden on the business given his input to this and other aspects of the role.  The hearing heard evidence that the turnover was in the region of €52 million and the Complainant’s salary would have accounted for approximately 0.30% of this.

The Complainant gave evidence that the business case which was declared as the rationale behind the decision was not given to him as the “at risk” meeting.  The Complainant had to request this and the proposed revised structure.  The Complainant took issue with many aspects of this business case but these were not resolved.  One notable feature was that the Respondent continued to progress its recruitment schedule despite the need for financial restraint.  The Complainant made a significant point in that the Irish portfolio was ahead of budget and there was no rationale for the need for cost-saving measures.  The Respondent made no effort to engage with the Complainant in relation to cost-saving measures despite his obvious competence and accomplishments since taking on the role. 

The Respondent submits that they engaged the services of an external HR consultancy firm to ensure impartiality in relation to procedures.  There was no evidence that this firm had any input into the rationale and was engaged to guide the Respondent in relation to “any procedures attaching to any possible redundancies”.  The Complainant was the only employee who was made redundant.

In considering the evidence I find that there was no evidence adduced to substantiate the assertion that the financial position of the Respondent was such that it would justify the redundancy of the role of Head of Operations.  There was contradictory evidence from the Respondent in relation to the criteria used and the disputed business case.  I also find that there was a lack of genuine dialogue with the Complainant during the “at risk” stage and also  to fully consider the Complainant’s suggestions on possible alternatives.  It is only after all possible alternatives have been exhausted and found to be of no avail and the consultation process can be properly concluded can it then be confirmed that the role is to be selected for redundancy.  It was not disputed that the decision to make the Complainant’s role redundant was confirmed to him by email prior to the final meeting scheduled to discuss this matter. There was also a marked absence of the minutes of any meeting at which the Senior Management team made the decision to make the role redundant. I find that redundancy was used as a cloak in the dismissal of the Complainant and I find that this complaint is well founded.

In the light of this conclusion I find that the dismissal of the Complainant by reason of redundancy was unfair for the purposes of the Acts and the Complainant’s claim is well-founded.  In relation to redress I believe that compensation is the appropriate redress in this case.

The Complainant also confirmed that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. Details of the Complainant’s loss were submitted.  The Complainant gave evidence of the attempts to mitigate his loss in securing alternative employment and these included overseas possibilities.

Redress:

Mitigation of Loss:  Section 7 (2) of the Act deals with compensation and mitigation of loss.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister,

(e) the extent any) of the compliance or failure to comply by the employer, relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal …

(3) In this Section –

“financial loss” in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu or in addition to pay.”

It was submitted on behalf of the Complainant that he was successful in obtaining a position as General Manager on 01/01/2024 and he had to relocate to Scotland.  He is paid a salary equal to €119,589.   It was also submitted on behalf of the Complainant that he is also entitled to recover his losses of €89,230.76 up to finding alternative employment and his continuing loss which equates to €40,411 per year.

Section 7 of the Unfair Dismissals Act, 1977 sets out the limitation of redress:

Section 7(1)(c) allows for compensation of financial loss:

“ (c) payment by the employer to the employee of such compensation (not exceeding in amount of 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The Complainant was dismissed on 16/06/2023 and was paid three months’ notice pay.  His loss up to 01/01/2024 was €60,000 and his ongoing loss is €40,411.  In these circumstances I believe that total compensation of €125,000 is just and equitable having regard to all the circumstances of this case.

CA-00047192:  I find that the Complainant was unfairly dismissed by reason of redundancy.  I award the Complainant compensation in the sum of €125,000.

Redundancy.  Selection criteria.