Complainant

Respondent

Parties

Jijo  Thomas

Gdc Media Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00065434-001

15/08/2024

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

CA-00065434-002

15/08/2024

The Complainant was employed as a QA Engineer with the Respondent from 10 January 2022 until 9 May 2024 and earned a salary of €64,260 per annum. He stated that he was unfairly selected for redundancy by the Respondent.

The Complainant in his evidence stated that the consultation process was wholly inadequate. Specifically, he stated that no proposals were made to him by the Respondent during the period and that the onus was entirely on him to propose roles that he was suitable for. He stated that he highlighted during the process that he had 15 years’ experience as a Recruiter but was not considered for any recruitment roles. He also stated that he had experience as a Business Analyst and a Scrum Master. In addition, he highlighted that there were no discussions had with him around training and development opportunities for other roles with the Respondent.

He accepted in cross-examination that he did not have the skillset to fulfil either a software development or a data quality engineer role.

The Respondent stated that on 9 April 2024, the Complainant, along with 3 other QA Engineers within the Technology vertical (department), were invited to a meeting to discuss a proposed update to the team structure. The meeting was chaired by the VP of Technology and supported by the Senior People Partner.

In this meeting, the VP explained that the business had been tasked with driving efficiency in 2024 and that an inefficiency in the QA / Developer processes had been identified. The VP explained that the existing structure, namely one designated QA supporting each of the development teams was proving inefficient and creating bottlenecks and causing delays to releases. The proposal was to move to a structure whereby each team of developers would test their own code, removing the reliance on one QA across numerous developers with competing priorities, thereby rendering the QA roles redundant.

It was also confirmed in the meeting of 9 April 2024, that this was a proposal and that the Respondent would enter into a 30-day consultation period to commence on 10 April 2024. It was explained that the purpose of the consultation period was to explore alternative options to mitigate the proposed redundancy of the QA role and/or to explore suitable alternative options within the GDC Group. It was also explained that the QA Engineers were at risk of redundancy. It was clearly stated that the proposal was motivated by a need to create a more efficient process and was not performance related.

All 4 QA Engineers within the Technology vertical (department) were subsequently made redundant after a 30-day consultation period.

It was also asserted that effective from 9 May 2024, the business implemented the restructuring that was proposed during the consultation period and there are no plans to re-introduce the QA role within the Technology vertical (department).

The Law

Section 6 of the Unfair Dismissal Act states inter alia

 (1) 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.…

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

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

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971 as amended by the Industrial Relations Act 1990, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(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:

…

(c) the redundancy of the employee,  

(6) In determining for the purposes of this Act whether the 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 more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

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

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

Section 7 of the Redundancy Payments Act, 1967, as amended, states:

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

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

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

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

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

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

Findings

While the Respondent asserted that the redundancy of the Complainant’s position was in accordance with Section 7 (2) above, it is clear from a review of the relevant case law that where redundancy is presented as the reason for termination of employment, it must not only meet the definition of the term but it must also be shown that the Complainant was fairly dismissed.

In the seminal case of Panisi v JVC Europe Ltd. [2012] ELR 70, Charleton J held:

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

 In Panisi it was also held:

“It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be examined….”

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854:

“The Court accepts that the Respondent was entitled to restructure its business and reduce its workforce if necessary. While the Court accepts that 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 Labour Court also held in the case of Student Union Commercial Services v Traynor UDD1726  

“In the instant case, the Court is satisfied that the Respondent did follow a consultation process with the Complainant to inform him that his role in the Company was being considered for redundancy. The Complainant was given the opportunity to make suggestions as to why he should be retained and on alternatives that might be considered. However, the Court is not satisfied that the Respondent has demonstrated that it gave due consideration to the suggestions made and/or to the possibility of alternative employment options that may be available. The Court notes that at the consultation meeting held on 13th January 2016, reference was made to consideration of options and/or suggestions being put forward by both sides. At the consultation meeting of 19th January 2016, the Respondent explained to the Complainant that a number of alternatives were under consideration and that the most suitable possible alternatives was redeployment, which may even entail different duties, pay rates, shift patterns and responsibilities. By 27th January 2016 the Complainant was informed that no suitable alternative position was available and he was being made redundant. The Court notes that the Complainant had almost twelve years’ service. The Respondent had a number of business units and had fluctuating numbers of staff employed. 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 being 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.”

In the instant case, I noted that no alternatives to redundancy were presented by the Respondent during the consultation period, similar to the Respondent in the matter of Student Union Commercial Services v Traynor UDD1726 above. While I noted the Respondent’s evidence that any decision to retain the Complainant would have involved dismissing other employees, I do not believe that this would necessarily have been the case if a meaningful consultation process had taken place. Specifically, to eliminate the requirement for compulsory redundancies, which I recognise the Respondent was entitled to effect, a voluntary redundancy scheme should have been considered whereby the option of a paid exit could have been offered to suitable employees. This failure to offer such a scheme was particularly disappointing when one considers that there were QA Engineers working in three other departments within the Respondent organisation who may have availed of the offer to leave, thereby safeguarding the Complainant’s employment.

In addition to not instigating a voluntary redundancy scheme for QA Engineers across the organisation, it was most concerning of all that the Respondent did not consider QA Engineers from the other three departments for redundancy. Instead, they restricted the selection pool exclusively to those in the Technology vertical department. A reasonable employer would have placed all QA Engineers within the organization at risk of redundancy, rather than making decisions based on departmental affiliation.

This view is consistent with the decision of the Employment Appeals Tribunal in Gillian Free v Oxigen Environmental UD 206/2011, where it was noted that

“when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.

I also note that there was no avenue of appeal provided to the Complainant when he was notified of the termination of his employment. While the Respondent stated that an appeal is not provided for in their policies, I find that such a process could have given him the opportunity to defend his future employment and highlight his willingness to work in alternative roles. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner. 

Considering all of foregoing points, I find that the Complainant was unfairly dismissed.

CA-00065434-001:

This complaint was withdrawn

CA-00065434-002:

The Law:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be

entitled to redress consisting of whichever of the following the adjudication officer, considers

appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before

his dismissal on the terms and conditions on which he was employed immediately before his

dismissal together with a term that the re-instatement shall be deemed to have commenced on the

day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately

before his dismissal or in a different position which would be reasonably suitable for him on such

terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the

employer of such compensation in respect of the loss (not exceeding in amount 104 weeks

remuneration in respect of the employment from which he was dismissed calculated in accordance

with regulations under section 17 of this Act) as is just and equitable having regard to all the

circumstances,

(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 financial loss referred to in that subsection was attributable to an

act, 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 of by the

Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the

employee, with the said section 14,

(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 1973, or in relation to superannuation;

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

Findings:

I find that the Complainant was unfairly dismissed for the reasons set out above.

In considering the appropriate remedy, I note that the Complainant is seeking compensation.

In deciding on the level of compensation to award, I note that the Complainant was out of work from 9 May 2004 until 1 August 2024, when he secured a new role, albeit on a much-reduced salary of €38,000.  He subsequently left that role due of his own accord on 12 September 2024 and was still seeking work on the day of the hearing.

In calculating my award, I must recognise both the period of unemployment from 9 May 2024 to 1 August 2024 and, that he left his new role voluntarily. I must also consider however that this role was at a much lower salary level than what he earned with the Respondent and that even if he had stayed in this role, he would have had ongoing financial loss. I am satisfied that his efforts both to secure a new role after 12 September 2024 and mitigate this ongoing loss were reasonable.

As well as examining the Complainant’s efforts to mitigate his loss, I must also recognise, when calculating my award, that the Respondent’s consultation process was wholly inadequateas set out in my analysis above.

I also have regard to the Labour Court decision in the case of Obasanjo Olajubu v Wasdell Europe

UDD 2449 where it was highlighted that:

”An award of compensation must be in an amount that is ‘just and equitable in all the

circumstances”. These words provide the Court with some latitude in considering both mitigating and

aggravating factors in the circumstances surrounding the dismissal”.

Considering all of the foregoing points, I make an award of €25,000 in respect of the unfair dismissal.