ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008999
Paul Twomey BL. Janet Keane of McMahon & Associates, Patricia Freeley
Fred Gilligan BL, Connor Quigley & Blanaid Lynch of Ahern Rudden Quigley Solicitors, Kevin Maughan, Michael Walls
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 05/02/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 41 of the Workplace Relations Act, 2015 and Sec 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as Director of Energy Strategy from 2nd November 2015 to 23rd February 2017. He was paid a basic salary of €60,000 per annum and bonus of €60,000 based on achievement of agreed goals. He has claimed that he was unfairly dismissed under the guise of a redundancy. He has sought compensation.
1) Payment of Wages Act CA 11891-002
This claim was withdrawn.
2) Unfair Dismissals Act CA 11891-001
Summary of Respondent’s Case:
The Complainant commenced employment on 2nd November 2015 in a newly created role of Head of Energy Strategy. From April 2016, the role changed to become primarily focussed on sales, assisting the sales team with pricing specific projects and closing sales. From September 2016, the Complainant worked solely on sales related activities. On 17th October 2016, the Managing Director (MD) met with the Complainant to advise him that given the changing needs of the business and the elimination of the non-sales portion of his role his position of Head of Energy Strategy was at risk of redundancy. He was advised of an alternative role of Key Account Manager for the West of Ireland. The Respondent understood that this was accepted. The Complainant relocated to the West of Ireland unknown to the Respondent in December 2016 to concentrate on sales. His role did not carry any strategic duties. He operated only one day a week in Dublin for sales meetings. The MD and the Finance Director (FD) met with him on 23rd February 2017 and explained that his position of Head of Energy Strategy was no longer of any relevance and was being eliminated. He was informed that his position was being made redundant and that he would receive his entitlements. He was asked to leave his keys and laptop but he refused. He was formally notified of the redundancy on 1st March 2017. He was advised that he would receive all his contractual entitlements but as he had not two years’ continuous service he would not be entitled to statutory redundancy. He was offered an ex-gratia payment of €5,000 subject to him signing a waiver agreement. He declined to accept. The Respondent then gave the written reasons for the redundancy as requested by his solicitor, which was the gradual change in his role from strategic duties to sales duties. The elimination of the position of Head of Energy Strategy was motivated by legitimate business concerns. In fact, he had not been fulfilling that role for some time. He declined the offer of an alternative role as Key Account Manager for the West of Ireland. They rely upon Sec 7(2) of the Redundancy Payments Act 1967 in support of their position. The position of Head of Energy Strategy simply was not required by the company. His position was placed at risk and he was then offered an alternative role. This was a genuine redundancy. This claim is rejected.
Summary of Complainant’s Case
The Complainant was paid a basic salary of €60,000 per annum plus a bonus of up to €60,000 depending on company performance. There was no system of performance appraisal. He was paid his full bonus for quarter 1, 2, 3 and 50% of 4. At the time of his dismissal he was due to be paid another bonus in January 2017. He was also entitled to stock options. He denies that from April 2016 his role changed to a sales role. There was no staff handbook in operation and he was never provided with procedures for dismissal on grounds of redundancy. Up to his dismissal he had an exemplary employment record. He met with the MD on 23rd February 2017 and was told that the company had decided to make him redundant, with immediate effect. He expressed surprise and disappointment at this news. He was then offered €5,000 as an ex-gratia payment. He later met with the MD to collect his personal belongings and he was offered €6,000 as an ex-gratia payment and he could keep the lap top. This was subject to signing a waiver. In a follow-up to this meeting by a letter the Respondent undertook to pay €3,750 and €1,250 in notice and to pay expenses of €7,167. He was effectively summarily dismissed without notice of the supposed redundancy. This was not agreed to. He found work on 27th September 2017 and had suffered €32,500 losses by that date. His new employment is paid at €64,000 per annum and so he is suffering an ongoing loss of €56,000 per annum. This was not a genuine redundancy. There were no procedures in place, he was not given notice of the redundancy, there was no process used to arrive at the decision to dismiss., he was unfairly selected for redundancy, reasons other than redundancy motivated the decision to dismiss, the dismissal is substantively and procedurally unfair, there was no consultation, no alternatives considered. He cited the law and case law in support. This dismissal was both substantively and procedurally unfair. He is seeking compensation.
Findings and Conclusions:
I note the considerable conflict of evidence in this case.
I note that the Respondent asserts that from April 2016 the Complainant’s role had changed to that of a sales role primarily.
I note that the Complainant accepted that he undertook a sales role but that he never wanted to work in that field.
I note that the meeting of 17th October is in dispute. I find that the evidence is at complete odds. The Respondent has asserted that the Complainant was advised that his position was at risk of redundancy and that he was offered an alternative sales role in the West of Ireland. The Complainant has denied this.
I find that there was no paper trail in connection with this alleged meeting.
I note that on 23rd February the Respondent confirmed that his position was redundant and that he was to leave the employment with immediate effect.
I note the Complainant stated that he was shocked and surprised with this announcement.
I note the Respondent’s evidence that the business had incurred considerable losses in the start-up.
I find that an organisation is entitled to re-organise its business and doesn’t have to be a loss maker just to do that.
I am satisfied that the Respondent initially decided that its business needed such a position, albeit a very costly one.
I am satisfied that they decided to make this post redundant.
I find that they have not replaced this position.
Therefore, I find that this was a genuine redundancy
I note the conflict of evidence in this case.
I note that the Respondent failed to confirm in writing the outcomes of any of the meetings that have now given rise to this dispute.
I find that the Respondent’s assertion that they placed the Complainant’s position at risk of redundancy is disputed.
I find that they failed to confirm this in writing.
I find that they failed to confirm in writing their efforts to seek alternative employment.
I find that the Complainant had accepted a sales role and that he had hoped that he would revert to his original position on a full-time basis.
I found no evidence to support that position.
I find that there should be no surprises when it comes to redundancy.
I find that the Complainant was unaware when he went to that meeting on 23rd February 2017 that he would leave that office without a job, despite what may or not may have happened in the previous October meeting.
I find that the Respondent failed to advise him in advance of the purpose of the meeting and his right to reopresentation.
I find that they did not adequately discuss alternatives to his role.
I accept that there was no other person performing his original role. Therefore, no selection has arisen.
I find that this dismissal by reason of redundancy was procedurally unfair.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons, I have decided that this dismissal by reason of redundancy was procedurally unfair.
I find that compensation is the appropriate redress.
I order the Respondent to pay the Complainant compensation of €25,000 to be paid within six weeks of the date of the decision and that he should retain the laptop.
Dated: 24th May 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Unfair dismissal by reason of redundancy